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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-12-01 Daily Xml
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CORRECTIONAL SERVICES (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 30 November 2011.)

Clause 59.

The Hon. S.G. WADE: I thank the minister for reporting progress on this matter last night. As per the understanding, the opposition has consulted parliamentary counsel and other officers. In that context, it would be of assistance to the opposition, and I hope of assistance to other members, if I could ask some questions of clarification of the minister as to the origin of the provision and how it would operate in practice. I will ask the minister a question and then, if you like, do a House of Assembly explanation after the question.

The question is: is the primary purpose of section 85CA to ensure that health workers providing information are not in breach of the confidential requirements under the Health Care Act or the Mental Health Act? At the government briefing on the bill, the opposition was advised that the primary purpose of section 85CA is for that purpose, particularly in relation to section 93 of the Health Care Act and section 106 of the Mental Health Act. The minister mentioned both of those sections in her comments last night. I understand that the context is that the issue was highlighted by the Deputy State Coroner in the coronial inquest into the death of Laura Parker. Recommendation 3 stated:

That the Minister for Health and the Minister for Correctional Services introduce such legislation as may be necessary to overcome the confidentiality considerations in respect of the implementation of Recommendations 1) and 2).

Recommendations 1 and 2 relate to protocols and procedures for the sharing and storing of information.

The Hon. G.E. GAGO: I have been advised the answer is yes, that is the primary purpose.

The Hon. S.G. WADE: The Health SA response to the coronial inquest into Laura Parker highlighted a series of provisions already in the act which would allow people to provide information. My question is: does the government understand that section 85CA would have any additional benefit to people other than the chief executive? The sort of people I am thinking of are a prison health service nurse in the Adelaide Remand Centre faced with the dilemma of whether or not to provide confidential information to a DCS prison guard. Would that person be needing to rely on the provisions of the Health Care Act and the Mental Health Act, or would section 85CA provide some additional assistance? I presume that would only be the case if, in exercising their role, they were acting as a delegate of the CE. Are there delegations or procedures in place such that a nurse may benefit from section 85CA?

The Hon. G.E. GAGO: I have been advised that the act compels the sharing of information with Correctional Services. There are joint system protocols between Health and Correctional Services and those protocols outline the responsibility of each agency for the sharing of information. So, in relation to the example the honourable member gave with the prison health nurse, the nurse would be guided by the protocols but it would be the legislation that would enable the appropriate sharing of information.

The Hon. S.G. WADE: If I could perhaps step back to the Mental Health Act and the Health Care Act, the Mental Health Act under section 93(3)(a) states, to paraphrase it, that a person does not breach their duty for confidentiality if they are disclosing information as required by law. Does the minister's previous answer suggest that section 85CA does apply to a nurse such that, in providing information to a DCS officer in the unit, they are complying with the law or, for example, is the nurse providing information that is reasonably required for the treatment of the person under the Health Care Act, section 93(3)(d)(i) 'disclosing information to a health or other service provider', which includes DCS 'if the disclosure is reasonably required for the treatment, care or rehabilitation of the person to which the information relates'. To put it in summary terms, would the nurse be relying on the Health Care Act section or on the legislative requirement established under section 85CA?

The Hon. G.E. GAGO: I have been advised that the Health Care Act does not prevent, in the example the member gave of the nurse, the disclosing of information as required by the law. Section 85CA will enable the disclosure of relevant information to the CE of Corrections.

The Hon. S.G. WADE: So, the answer is yes, it does empower the nurse?

The Hon. G.E. GAGO: The answer is yes, qualified by my previous answer.

The Hon. S.G. WADE: The advice Health gave in response to the Coroner's report is that they thought their employees already had power. In fact, they specifically said that they did not see the need for legislative change. I do not dispute the government's policy decision, through cabinet, to come to the parliament with this bill. I suppose the main point I want to clarify is: does this provide additional confidence to nurses and other health staff? My understanding from the minister's answer is yes, and I welcome that.

If I can now move on to the exercise of the discretion, I have been advised that the determination of what is required to be disclosed is a determination by the mental health or the health agency. I remind members that the threshold is 'such personal information about a prisoner as is reasonably required for the treatment, care or rehabilitation of the prisoner'. I presume that 'reasonably required' is an assessment of the agency that has the information, and I seek an assurance from the minister that that is her understanding, too.

The Hon. G.E. GAGO: I have been advised that that is correct.

The Hon. S.G. WADE: In that context, it may well be that information the person considers is not true and is not helpful for the treatment of the prisoner would be withheld by the officer. By the same ilk, it may be that information that is untrue—for example, a person with a mental health issue and reports about their psychotic delusions—might nonetheless be provided, even though it is untrue, because the health agency assesses that it is relevant to the treatment of the prisoner.

This goes back to our conversation last night, and discussions with officers highlighted the problem of truth in this context. However, the fundamental point that the opposition was trying to make last night is, if you like, the primacy of the health needs of the prisoner. My understanding is that, if the 'reasonably required' is an assessment for the mental health unit, that that can be balanced.

In that context, subsection (2) provides that protocols or guidelines may be established for the purposes of that section. I note that the Coroner made recommendations about protocols and procedures, and I note that the agencies had protocols and procedures in place even before the Coroner's ruling. They are joint protocols; in fact, I do not even know if they are authorised by the minister. I suppose what I am wondering here is, considering this act is committed to the Minister for Correctional Services, whether that reference to protocols and procedures only deals with protocols and procedures with ministerial imprimatur or is it any protocol or procedure of Health, Correctional Services or joint? Considering that the main operational protocols are joint, are they covered by this clause?

The CHAIR: I thought we were going to sort this out last night. Isn't that why we adjourned?

The Hon. S.G. WADE: I believe we are making progress, but if you have a different view you can act accordingly.

The Hon. G.E. GAGO: The advice I have received is that protocols are not as high documents as the honourable member might think. They are operational documents that are signed by the chief executives, not by the minister.

The Hon. S.G. WADE: I do not object to that at all as long as this section would cover them, as long as this section would give them authority.

The Hon. G.E. GAGO: My advice is yes.

The Hon. S.G. WADE: In that context, if a person does not disclose information and was acting in some way in accord with the protocols or guidelines under (2), would that person be taken to have met their duty to disclose under (1)? I suppose what I am saying is: what is the relevance of (2)?

The Hon. G.E. GAGO: I have been advised that the two subsections have to be consistent, but subsection (2) is subordinate to subsection (1), and they have to aid in the manner to establish a scheme for the day-to-day decision-making. I believe that we have really dealt pretty extensively with matters relating to this particular amendment that the member is proposing. These are quite technical questions that really require parliamentary counsel. If the honourable member wants to consult with parliamentary counsel, I invite him to do that, but I think it is time that we move on. I think we have dealt extensively with the matters surrounding this amendment.

The Hon. S.G. WADE: I do thank the minister for her patience up to this point. I only have two more questions.

The CHAIR: You have an amendment in front that you have moved.

The Hon. G.E. Gago: I think we need to move on. Let's move on.

The Hon. S.G. WADE: I only have two questions, and if the committee wants to guillotine me, then it can move accordingly. I want to go back to the answer the minister gave earlier. She told me that the protocols do not need to be ministerial level, but I would like clarification. Are the protocols of Health and the joint protocols covered by subsection (2)? I did not get an answer to that question.

The Hon. G.E. GAGO: I have been advised that the answer is yes.

The Hon. S.G. WADE: So the protocols and procedures do include Health and joint?

The Hon. G.E. GAGO: Yes.

The Hon. S.G. WADE: I thank the minister for those comments. In that context, if I could reiterate, the council has been assured that the judgement required as to whether it is reasonably required is that of a health or mental health agency, and that that decision will be informed by, if not controlled by, protocols by Health SA and joint protocols by Health SA and DCS.

On the basis of these assurances, the opposition understands that the current provisions do not compel health officers to provide information which is untrue, unless, in the health sector's estimation, to do so is reasonably required for the treatment, care or rehabilitation of the prisoner. The minister might disagree if that is not a correct understanding, but that is our understanding from the discussion we have just had.

In that sense, it is possible the information which is not true may nonetheless be of relevance to the treatment or care of the prisoner. We accept that, having had discussions with officers. On the basis of that understanding, the opposition seeks leave to withdraw its amendment.

Leave granted; amendment withdrawn.

The Hon. S.G. WADE: My further amendment is consequential and I will not be moving it.

Clause passed.

Remaining clauses (60 to 64), schedule and title passed.

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

That the bill be recommitted to examine clause 21.

The Hon. S.G. WADE: I would like to speak against that. By way of explanation, the opposition in good faith has looked at ways of trying to provide a requirement that victims of domestic violence need to seek the consent of the chief executive before they have access to a prisoner. We thank the officers, including parliamentary counsel, who worked with us. We have been back to the industry, if you like, to discuss what would work. It is not clear to us that there is a workable arrangement, so we do not intend to clutter legislation with provisions that cannot be implemented. We do record our interest in pursuing that as a policy objective going forward and hope that there might be a model that emerges in due course. I would suggest to the minister that perhaps an appropriate course might be to withdraw that motion.

The Hon. G.E. GAGO: I seek leave to withdraw my motion.

Leave granted; motion withdrawn.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (16:00): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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