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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-05-03 Daily Xml
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MENTAL HEALTH (INPATIENT) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 1 May 2012.)

The Hon. T.A. FRANKS (15:46): I rise today on behalf of the Greens to indicate our support for the Mental Health (Inpatient) Amendment Bill before us. We thank the Minister for Health for arranging a briefing and, in particular, Anita Ewing, adviser to the Minister for Mental Health and Substance Abuse, and Lisa Huber from the Department for Health and Ageing, for providing relevant information to assist us with our decision-making.

This bill seeks to amend the Mental Health Act 2009 in what is a minor but certainly significant way. We support the intent of this bill, which is to change the term 'detention and treatment order' to 'inpatient treatment order'. As members would be aware, not all persons who are subject to the current detention and treatment orders are kept in secure areas and, as the minister has advised, only patients who have been clinically assessed by psychiatrists and mental health experts as being at risk of harm necessitate being treated within that secure environment.

The Greens support the intent of this bill. We believe that terminology change is indeed a powerful tool to reduce the negative social stigma associated with mental health consumers. The term 'detention', as we are aware, is often associated with criminal behaviour, and this has led to an increased stigma around these particular mental health consumers. Referring to mental health consumers as 'detainees' is, quite rightly, no longer acceptable in our modern society. In fact, the Greens are disappointed that this terminology change did not take place when the act was amended more substantially in 2009.

What we are about to do in this state exists in other Australian jurisdictions as well. Western Australia, New South Wales and Victoria refer to detention and treatment orders as 'involuntary treatments', and we thank the government for providing us with a table of various terminologies of what is used both in Australia and around the world. What that highlights is that there is no agreed terminology in this area, but there is certainly a cultural shift from using language of criminality to language of medicine.

I certainly think this is a positive step forward, and I cannot go further without mentioning that the Greens are very pleased. In fact, my first private members bill to pass through this parliament was an amendment to the Mental Health Act which added to decriminalisation in the language and treatment of mental health consumers and, in fact, their carers, by removing the harbouring provisions which had been introduced into the new act but which fortunately were never implemented in practice in this state.

Punishing carers for taking in a loved one, with gaol terms and punitive fines, was no way forward for mental health, and the Greens are very proud to have made that contribution to the destigmatisation of mental health. I am also very pleased to see the government's latest campaign, taking up a social inclusion destigmatisation framework, and learning from the very valuable experience in New Zealand and various European and American jurisdictions. With social inclusion campaigns, it is not just a nice touchy-feely, heart-warming ad on the TV. They actually have not only an impact on the lives of mental health consumers but also an economic impact on the health budget.

I would point to the New Zealand campaign, Like Minds, Like Mine, which is an excellent and very long-running antidiscrimination campaign on mental health. That is well worth a look by any members who might be interested. Like Minds actually works. The campaign invested significantly in research and evaluation as part of its processes, and, in fact, as a result of that campaign, 51 per cent of New Zealanders would have felt ashamed of a mental illness diagnosis in 2006, a drop in figures from that of 65 per cent who would have felt that same shame the year that Like Minds began.

Twenty-five per cent of New Zealanders would accept a person with mental illness as a babysitter for their child, compared to 12 per cent in the first year of that campaign. Thirty-eight per cent disagreed with the statement that people with mental illness are more likely to be dangerous, compared to 27 per cent in the first year. That is a fantastic shift in mindset through that Like Minds, Like Mine campaign.

Of course, New Zealand is not alone, although New Zealand is commonly recognised as groundbreaking in the area of progressive approaches to mental health, and certainly we have a lot to learn from New Zealand. Another campaign that I would like to draw members' attention to is the Scottish 'see me' campaign. That is a very Scottish term, 'see me'. That campaign had similar outcomes of changing attitudes to mental illness. Pre campaign, 34 per cent of people believed that people with mental health problems were dangerous. Just four years into that campaign, only 17 per cent had this misconception.

At the beginning of the campaign, 35 per cent would agree with the statement that people with mental health problems are less likely to have friends than those without. After the campaign had been going for four years, 52 per cent of young people had that view. Very importantly, work to review that 'see me' campaign actually involved the Institute of Psychiatry, Kings College London with the London School of Economics undertaking a study of the economic implications of stigma and discrimination against people with mental illness.

They identified that negative attitudes towards people with mental illness in fact had the following negative consequences. It meant longer periods of untreated mental illness, with stigma acting as a barrier for those who needed treatment, and psychiatric research identified that the longer a person with mental illness waits to seek treatment, the more negative the outcomes for that person, and the more expensive and longer term the ultimate interventions will be.

Disincentives to invest in mental health over other areas of health were perceived to not be as popular. Certainly, mental health has long lived in the shadow of other health issues and been far too long ignored. There were also gains as a result of that campaign with regard to discrimination for those who were trying to stay in employment and for those who were attempting to gain employment. Certainly, that connection with the labour force is a significant economic benefit from the loss and decrease of stigma around mental illness. It also extended to education and discrimination for children in the school system in particular. Whether that was their own illness or their parents' illness was also measured through that study.

I think the calculated cost savings of a reduction in negative attitudes towards people with depression was £164 per person with depression or £4.26 per adult in the whole population. Similarly, in relation to negative attitudes towards schizophrenia, the research found there was a cost saving of £4.51 per adult in the general population. This move is not only something that we make as a progressive parliament, it is in fact something that is quite economically viable and sustainable and will hopefully not only see people have better lives but see our health budget less called upon in the future.

So, I certainly encourage the government to continue with its current direction in terms of destigmatisation and social inclusion campaigns, but I certainly put on record that all of these campaigns found that there was increased need for community supports as a result of increased awareness. Should there be no support for those community organisations working tirelessly to change lives for those who are mental health consumers and their carers, then those ads will have been in vain.

The government, of course, is nearing the end of the Stepping Up report, and I would take this opportunity to call on the government to articulate their plans for the future approaches to mental health in this state. Certainly, not all of the objectives of Stepping Up have yet been achieved. Many of them have, and I certainly commend the government for that, but I raise a note of caution that we have not yet seen consultation begun for a future plan. While there are federal initiatives, this is not something that the state should put either in the too hard basket or the federal basket alone for action.

The bill, of course, will cover the topic of ECT, and I will certainly make a further contribution in the committee stage when we get to that particular item. I have a few questions to put at this stage for the government to address before we move beyond second reading. The inpatient treatment order name, in fact, highlights an anomaly. In South Australia, an inpatient treatment order allows the medical practitioner to authorise treatment of a mental illness or any other illness—for example, in section 24 of the Mental Health Act 2009.

Now, if a person has a mental illness and is detained, a psychiatrist can consent to any treatment. I am not sure if the government has clarity on this, but concerns have certainly been raised in my consultations that this treatment goes beyond simply mental health treatment and could, in fact, include surgical treatment or general medical treatment such as abdominal surgery or some other types of surgery totally unrelated to mental illness. I would certainly like some clarification from the government on that particular wording.

We also note that there have been differences of opinion within the mental health community about the way forward with wording. I think everyone agrees that we need to decriminalise the language but, in disability, the word 'detention' remains current, and some of the logic for this is that it needs to be recognised that there is, in fact, some value in using the word 'detention' at times, even if the name of the order is changed.

Recognising that a person is detained is actually important for ensuring that that individual's human rights are upheld. It indicates that there has been a loss of freedom to that individual, and it indicates that the detaining authority has added responsibilities for the welfare of that individual because they are, in fact, detained. Certainly, lawyers tend to use a dictionary definition of detention. The definition that the Office of the Public Advocate uses in disability work is as follows:

Detention means a situation where a person is unable to physically leave the place where he or she receives disability services. The means of detention may include locked doors, windows or gates, and the constant supervision and escorting of a person to prevent the person from exercising freedom of movement. 'Detain' and 'detained' have corresponding meanings.

I raise this because I think it needs to be addressed under this Mental Health Act, in terms of implications for changing names of orders which may, in fact, water down human rights obligations with particular regard, obviously, to detention.

Certainly, South Australia has previously watered down the threshold criteria for detaining a person from that recommended by the United Nations and the Bidmeade review by removing the word 'serious' in the criteria for detention, and described the risk to patients there. If we are going to use a less harsh term to describe the order, it may be better to use the internationally-accepted threshold test in part of that wording change. However, I think these are things we can nut out further in discussions with the government. As I said, I would like some response from the government on these particular issues.

With that, I commend the government for continuing to progress work on mental health, although I am disappointed that we have not seen a successor to the Stepping Up plan. While the government has eventually been dragged kicking and screaming for the Community Visitors Scheme to be implemented as part of this Mental Health Act, I note that that has not been avidly embraced by this government. With the Disability Act coming before us soon, I would like to see a real Community Visitors Scheme in this state. I certainly put on the record at this stage that the community of consumers and carers will not be letting their human rights be ignored, although the government may feel that that issue has been stymied for the moment. With that, I commend the bill for a second reading and look forward to the committee stage.

The Hon. R.L. BROKENSHIRE (16:01): I rise on behalf of Family First to support this bill and, indeed, the second reading of the bill. Destigmatisation is something that did need to be addressed, and I would expect that there will be strong support for it throughout the community. From that point of view, I place on the public record our support for the bill. However, I do want to put a few other things into this debate.

First of all, I will start with the fact that in July 2014 we will see a review of the Mental Health Act, which I understand is up to 12 months after we should have been seeing a review, because of delays from the last assessment of the Mental Health Act. That is just after the next state election. I think that is unfortunate, because it would have been good to have seen a bill come into this house, certainly in the middle of next year. That would have given the community of South Australia an opportunity to see where everybody places themselves in both houses of the parliament in respect of mental health and the improvements that are desperately needed, even far more broadly than the issue of putting 'inpatient' into the amendment bill and therefore destigmatising the 'involuntary patients' matters in respect of mental health.

I wanted to move some other amendments now, but was unfortunately advised that, because of the way the government had framed this bill, I would not be in a position on this occasion to move further amendments. I think that is unfortunate, and I will give my reason now. First of all, if you look at the Productivity Commission's last report on government services in January 2012—in other words, it has just come through, just in time to give more opportunity into assisting with mental health across South Australia, particularly in respect of improvements with the Mental Health Act—it says: firstly, that by far the highest mainland state with persons in the lowest socioeconomic quintile having contact with community mental health services was South Australia. In fact, only Tasmania across all states and territories was higher.

Secondly, the highest state or territory with mentally ill persons reporting that they are unemployed happens to be South Australia. The third statistic in the Productivity Commission report shows that, in South Australia, we have actually tracked upwards over the last three reporting years by 3,025 people to 30,818 people needing public clinical mental health services. That is an increase from 1.8 per cent to 2 per cent of the state population, which is a significant percentage. Of all states and territories, we are second only to the Northern Territory. If we compare, for instance, to Queensland, they declined by 3,309 people needing such services, so that was a decrease, from 1.8 to 1.7 per cent, of their population.

The fourth point that we found in the Productivity Commission's statistical data was that South Australia recorded a 28 per cent increase over five years to 2009-10 from $700 to $899 in average recurrent costs per inpatient bed day in general mental health services compared to 4 per cent in New South Wales, 17 per cent in Victoria, 18 per cent in Queensland and 10 per cent in Western Australia. Tasmania was actually very high, again at 48 per cent. So there are figures there that are quite concerning to the state. I would have hoped that the Minister for Health would have put some urgent assessment into that and actually put in further amendments at this time.

For example, we know that the Mental Health Coalition has put some good suggestions forward in policy that has not been adopted at this point by the government. We also know that the Social Inclusion Board's Stepping Up plan, which went from 2007 to 2012, concludes this year. We have not had any indication at all from the government—particularly now that we do not have a social inclusion board—on what it intends to do to replace the Stepping Up plan. Again, in our opinion, that is of some concern when we consider the commitment to improving more broadly mental health issues.

The Public Advocate, Mr John Brayley, suggested that we should be improving advocacy and support for mental health patients, removing the new Community Visitors Scheme from under SA Health to be a truly independent government-funded agency under the Public Advocate, reporting and advocating without fear of repercussions from the government of the day. That is one of the amendments that I would have liked to put up here today based on what the Public Advocate has put—

The Hon. T.A. Franks: The Disability Act. Wait until that comes before us.

The Hon. R.L. BROKENSHIRE: Yes, but I would have liked to put it in here, too, because I think it is so important; however, we are advised that we cannot. It was also suggested that we should require all treatment orders to impose treatment conditions for inpatients with respect to illicit drug issues, given that the Productivity Commission's latest report on government services found that South Australia had 11.3 per cent of mental health inpatients—which was second only to Western Australia, with 13.4 per cent—reporting the use of cannabis in the 12 months prior to admission. I would have liked to have put in this amendment bill some initiatives to assist those people with respect to these illicit drug issues, which are clearly contributing to a percentage of mental health inpatients' adverse health.

There were a number of other initiatives that we wanted to put in. One initiative that Victoria has put forward requires the government to develop a specific policy on sexual safety of mental health inpatients to ensure that claims of sexual abuse are taken seriously and that protocols are developed for safe handover and monitoring of inpatients. That is just one of the other initiatives.

I think we were in a position to debate now the commissioning of the Solicitor-General to clarify medical professionals' liability for use of seclusion and restraint of mental health inpatients as well as requiring and supporting the Public Advocate to conduct an independent audit of patient and user rights within the South Australian mental health system, the barriers to recovery and recommended improvements.

It would have been good to have looked at giving patients the right to communicate with a qualified advocate from a state or commonwealth-funded advocacy service, such as the Disability Advocacy and Complaints Service of South Australia, or requiring that the currently mandatory statement of rights be given to patients to advise the person of that right to speak with such an advocate. There are so many things—I just highlight a few—we could have done, and a lot that would not have cost money.

We so often hear in this parliament that we cannot do things because of budget constraints. Some of these things are proactive opportunities to assist people with mental health, they may sometimes integrate with the disability sector, but wherever we can, when a bill is before the council, I believe the parliament should have the right to improve that bill. I am very frustrated that on this occasion we have been advised that we do not have that right. I put that on the public record and I hope the minister, the Hon. John Hill, and his staff, will have a look at what the Legislative Councillors have said during this debate and that we will not have to wait until July 2014 to see some of these improvements.

We have expertise in the community: the Public Advocate, the Mental Health Coalition and a lot of others with good intent, who have put forward sensible, viable opportunities to improve mental health. Why are we waiting until July 2014? We should not be fearful of the fact that elections and things like that have to be considered before the interests of the community of South Australia, people who directly have a mental health problem or have a loved one, a family member or friend, with a mental health problem.

I hope we see further legislative and other proactive opportunities to assist people in this state who have a mental health problem. We need to remember that one in five South Australians, at some stage in their life, will encounter (directly) some form of mental health illness. It is an issue that is becoming more of a focus in the general community. I think the community believes the government needs to focus more on mental health. With those few words, we support the bill.

The Hon. CARMEL ZOLLO (16:11): I rise to support the Mental Health (Inpatient) Amendment Bill 2012. This bill recognises that the stigma experienced by people with mental illness can be insidious, sometimes covert and often unintended, particularly in our choice of words. Words have a powerful influence on our perception of things, our attitudes, and on how we respond. There is, generally, a negative stigma that accompanies mental illness. It is something that must be challenged within our community so that those who become mentally unwell do not delay getting the help they need because they fear how others may judge them.

I echo the sentiments of the Hon. Tammy Franks in saying that early intervention in mental illness benefits recovery time and outcomes and can help minimise the risk of harm to others. Talking about psychological distress, or mental issues, and seeking help early should not be seen as a sign of weakness. In fact, the opposite is true. It takes a lot of strength, often when a person is least able to muster it.

The primary purpose of this bill is to address in a small but significant way some of the unintended stigmatisation of people with mental illness through the use of words such as 'detention' within the current legislation. The bill proposes to replace the terminology 'detention and treatment orders' with 'inpatient treatment orders'. The change in terminology does not in any way change the function of the orders or the limitations on their duration. These subtle but important changes to negative terms like 'detainee' in relation to people who are unwell—not wrong or bad or criminal—can assist community understanding that mental illness and losing liberties and freedoms rarely need to go hand in hand.

The bill also addresses a common public perception that a detention and treatment order involves locking up a mentally ill person, much like a criminal is locked up in a correctional facility, when in reality contemporary mental health care provides for an involuntary inpatient to be under supervision in a non-secure environment in accordance with the objects and guiding principles of the Mental Health Act. There are some patients who are clinically assessed as bearing a significant risk of harm, necessitating treatment within a secure environment. These people are the minority of persons with mental illness.

There are measures provided for in the bill which allow for the forcible return of absconding patients, of course using the least amount of force necessary to the particular situation. There are policies in metropolitan mental health treatment centres that guide practice and stipulate the action to be taken and time frames if it becomes evident that a consumer may be missing from a bedded unit.

The introduction of the amendment bill coincides with a mental health destigmatisation campaign currently being facilitated by SA Health and commenced in February, through March and again in May through to June this year. Stigma and fear are the bases for why the majority of mentally ill are considered dangerous. Media tends to exaggerate the danger that mentally ill individuals pose to the general public.

Over and again we are shown a supposed link between mental illness and violent behaviour, yet a mentally ill individual is no more likely to approach and harm a stranger in a public setting than is a non mentally ill individual. Both are more likely to confront and harm a friend or family member in a private setting. People who are seriously mentally unwell are generally more of a risk to themselves than to others.

The bill also makes minor clarifications to the consent provisions for electro-convulsive therapy (ECT), and to consent forms under the act. These changes negate ambiguity and facilitate the objects of the act. There has been no change to the substance of the provision and how the law of consent applies in relation to ECT.

Although it has only been about two years since the Mental Health Act 2009 came into operation, the field of mental health is progressing quickly in South Australia. Our mental health reforms are extensive and there is significant advancement in attitudes and responses towards mental illness. It has become increasingly evident that the proposed change in terminology will have immense positive effect for mentally ill people, including their loved ones. I commend the bill to members of the Legislative Council.

Debate adjourned on motion of the Hon. J.S.L. Dawkins.

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