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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-06-12 Daily Xml
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MENTAL HEALTH (INPATIENT) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 31 May 2012.)

Clause 4.

The Hon. T.A. FRANKS: I ask the government in what other jurisdictions in Australia are there titles for inpatient treatment orders that include the word 'involuntary'?

The Hon. R.P. WORTLEY: While we are getting that information, I have information addressing some of the questions asked by the Hon. Ms Lensink. On the matter regarding the circumstances of ECT for minors, electroconvulsive therapy is a psychiatric treatment most commonly used to treat the symptoms of depression. During ECT a series of brief or ultra-brief electrical impulses is administered, prompting seizures. Patients are anaesthetised so movement is barely obvious and nothing like the way it is presented in the movies.

Studies indicate that about 80 per cent of patients with severe depression experience dramatic improvement after ECT, even where medication and therapy has failed. For patients who are suicidal ECT can be life-saving. ECT for a child under 16 has only occurred once in the last five years. It is only ever a last resort treatment for this age group, where an illness such as depression is intractable and not responding to any other therapeutic measures.

The checks and balances within the act include that, where ECT is given urgently or it is not practicable to obtain consent, the psychiatrist must provide approved written notice to advise the chief psychiatrist within one business day. Contravention of ECT provisions carries a maximum penalty of $50,000 or four years' imprisonment.

On the matter of the circumstances that led to the ECT amendment in the government's bill, the circumstances that led to the amendment in this bill have been explained and addressed in the amendment moved by the Hon. Ann Bressington MLC. Have you been given that explanation?

The Hon. J.M.A. Lensink: Why don't you just read it out?

The Hon. T.A. Franks: We got an email last week, and a letter today.

The Hon. R.P. WORTLEY: In response to the request on the Community Visitor Scheme, the South Australian Community Visitor Scheme commenced 11 June 2010. The Mental Health Act mandates that each approved and limited treatment centre has a visit and inspection by two or more community visitors at least once a month. Community visitors inspect any and all areas of the treatment centres used to provide treatment, care and rehabilitation to people experiencing mental illness.

The scheme functions under the direction of Mr Maurice Corcoran, Principal Community Visitor, and has a further 18 people appointed to the role of community visitor. Community visitors are volunteer appointments, and generously give anywhere between 2½ and as much a 16 hours per month of their time to conduct visits and inspections. On average, each unit takes at least 1½ hours to perform a thorough visit and inspection, but it can take as long as three hours or even up to half a day of intensive visiting. Community visitors then spend additional time working on drafting reports, which the act requires to be submitted to the PCV following any visit and inspection of the treatment centre. Reports submitted to the PCV are in confidence.

Since the scheme's commencement, community visitors have conducted 157 mandated visits and inspections to 12 gazetted treatment centres and a further 42 requested visits to individual mental health patients within centres. The scheme is currently working on developing its first full-year annual report for submission to the Minister for Mental Health and Substance Abuse to be laid before both houses of parliament. The Community Visitor Scheme budget for 2012-13 is yet to be confirmed.

In response to matters raised by the Hon. Robert Brokenshire, I would like to acknowledge and thank the Hon. Robert Brokenshire MLC for his interest in and support of the Mental Health (Inpatient) Amendment Bill. The honourable member has raised issues in this place that are important in the context of the care and treatment of people with mental illness. These issues include how to best increase treatment and care capacity to assist mentally ill patients to overcome drug or alcohol misuse or addiction.

The government agrees that all appropriate avenues and efforts to address drug and alcohol misuse by anyone, not just those with a mental illness, should be taken in our community. The Mental Health Act 2009 requires treatment and care plans to describe any rehabilitation services and other significant services available to the patient. Drug and Alcohol Services SA works closely with mental health services.

I would like to indicate here today that the government is willing to consider this issue, along with suggestions by the honourable member to expand annual reporting requirements for the Public Advocate and the Chief Psychiatrist within the context of the review of the act, due to commence on 1 July 2013. The matters that the honourable member has raised in this place require proper thought and consideration, as well as appropriate consultation with consumers, carers and services—all of which can best occur within a structured and planned review process.

The ACTING CHAIR (Hon. J.S.L. Dawkins): The minister has some further responses, but the Hon. Ms Bressington has the call.

The Hon. A. BRESSINGTON: I am happy to wait if the minister wants to answer the Hon. Michelle Lensink's question first.

The Hon. R.P. WORTLEY: There are some states, but not all include reference to 'involuntary'. Several states are in the process of reviewing the mental health legislation.

The Hon. A. BRESSINGTON: I just have a question for the minister on ECT for minors. I am just wondering how many children under the age of 16 nationally have been administered ECT, and what are the findings of that cohort of people on, first, the long-term effects of ECT and, secondly, how effective it has been in not only postponing but preventing suicidal tendencies? Also, why did it seem to be necessary to override parental consent to ECT for minors?

The Hon. R.P. WORTLEY: There has only been one in the last five years in South Australia.

The Hon. A. BRESSINGTON: So, if there has only been one ECT administered to someone aged 16 years or under in the last five years, what are we using as a measure for the necessity for this in the first place, and what research backs that up? Again, I ask: why is it necessary to override parental consent?

The Hon. R.P. WORTLEY: We are not changing the act at all in regard to parental permission for ECT; and research is limited in regard to ECT on children, but all indications are that it is the same as adults.

The Hon. T.A. FRANKS: Returning to clause 4, given that you have indicated that some states do, indeed, use the word 'involuntary' with regard to inpatient treatment orders, or similar language—I would indicate that at least Victoria and Queensland use that terminology—I would ask, given that you have indicated that they may be possibly reviewing their acts, are you indicating that Queensland and Victoria are currently reviewing their mental health acts with regard to this language?

The Hon. R.P. WORTLEY: Yes, Victoria is currently reviewing its act.

The Hon. T.A. FRANKS: The question was specifically with regard to the involuntary nature of the language with regards to the terms of inpatient treatment orders. Are you aware that that is, in fact, something that they have found cause to review?

The Hon. R.P. WORTLEY: Victoria is reviewing the entire act and we really do not have the information as to whether that is part of the review. With regard to South Australia, we believe it is unnecessary to insert 'involuntary' as, by definition, any order under the Mental Health Act is involuntary.

The Hon. T.A. FRANKS: In the consultations with regard to the development of this bill, that was the crux, I do believe, of the minister's aim to lead to destigmatisation of the language. Is there any concern that in trying to call a shovel a shovel or a spade a spade, we are in fact calling a shovel and a spade a spoon?

The Hon. R.P. WORTLEY: No.

The Hon. T.A. FRANKS: Which groups supported the removal of any indication that this inpatient treatment was, in fact, involuntary? Were the annual reports of the Office of the Public Advocate, which have raised concerns about the diminution of the language, considered in the consultations around this particular bill?

The Hon. R.P. WORTLEY: There was quite broad consultation. The Office of the Chief Psychiatrist monitors the use of the act and the number of patients admitted under an involuntary order. If there is an increase in the use of these orders it will certainly come to attention.

The Hon. T.A. FRANKS: With respect, minister, my question is not about the consultation with the Chief Psychiatrist but with the stakeholder groups, in particular consumers and carers. It is all very well to have legal language and to have a bill that is supposed to be simplifying the language but if that does not translate into something meaningful for consumers and carers then it is not having the effect that, in fact, I think the minister would like this bill to have. My question is: which consumer and carer groups that were consulted supported not having a word such as 'involuntary' denoting the seriousness of these treatment orders?

The Hon. R.P. WORTLEY: My advice is that all consumer and carer groups were consulted.

The Hon. T.A. FRANKS: I repeat my question: which of them thought that the language should be diminished so far as to take out an indication that the treatment was involuntary?

The Hon. R.P. WORTLEY: All the consumer groups that were consulted supported the removal of 'detention' within the act.

The Hon. T.A. FRANKS: That is right. Yes, I understand that the word 'detention' was seen as not appropriate; however, was the word 'involuntary' tested and seen as inappropriate?

The Hon. R.P. WORTLEY: There was consultation on the current wording of 'inpatient treatment order', and that received significant support.

The Hon. T.A. FRANKS: I move:

Page 3, lines 1 to 4 [clause 4(2), inserted definition of inpatient treatment order—Delete the definition of inpatient treatment order

I will not labour the point too much, but I do so in terms of ensuring that we at least have on the record that these are serious treatment orders that we are considering. The use of the word 'involuntary', I would posit, does not promote stigma, would not lead to any practitioner not availing themselves of the legislation in this case but would, in fact, provide clarity to a consumer or carer of the exact nature of this order.

I have moved this amendment with the assumption that I do not have the numbers, but I urge the government to keep this on the radar for the review of this bill and to have a look at the consultation process which was undertaken about this bill, which was specifically about language and yet did not test some of the final wording in a way this sector of consumers and carers are happy with, because they have approached the Greens with this suggested amendment.

The Hon. R.P. WORTLEY: I understand that the intention of these amendments is to address concerns that the omission of reference to the compulsory nature of this treatment order takes the government amendment too far and now fails to accurately describe what the term actually means. The government does not support this amendment, as the redrafted sections 34 and 34A already cover off on the detention and confinement aspects.

The use of the word 'order' already gives the effect of the treatment being involuntary. Removing the emphasis on the involuntary aspects refocuses towards the treatment and care aspects. To make reference in the title of the order to compulsion is counter to the destigmatisation purpose of the bill. If there is any confusion, it is addressed by the information contained in the statement of rights that must, under the act, be provided to the patients and their carers.

The statement explains the involuntary nature of the order; that is, that aspects of a person's rights have been taken from them. Fear is what stops many people getting the help they need when mentally unwell, because for too long we have emphasised the taking away of rights and freedoms and not focused on the importance of getting the right care and treatment as early as possible.

The Hon. T.A. FRANKS: Does the minister understand that, in this case, the consumer will not actually be seeking an involuntary order but will be having one issued upon them without any choice?

The Hon. R.P. WORTLEY: The patient is given a statement of rights, which explains their rights under the act.

The Hon. T.A. FRANKS: I simply point out a challenge to the assumption that this in fact serves to reduce stigma and will ensure that somebody seeks help, because in fact that is not the case in this situation, and I urge the government to review this when it reviews the overall act.

The Hon. J.M.A. LENSINK: I commend the Hon. Tammy Franks for this amendment in that I think she identifies what is a problem within the Mental Health Act, and I have considerable sympathy for what she is proposing. I agree that this act is very difficult to interpret for users and consumers. However, the problem the government has highlighted in its written response to a number of us is that it may actually cloud the act. Given the time we have to consider this, and also given that the Royal Australian and New Zealand College of Psychiatrists has said that it does not support it, and the fact that the Liberal Party has not received any formal submission from any other organisations, I encourage them to participate in the process and certainly we look forward to a review of the act in future.

Amendment negatived; clause passed.

New clauses 4A, 4B and 4C.

The Hon. T.A. FRANKS: I move:

Page 3, after line 15—After clause 4 insert:

4A—Amendment of section 24—Treatment of patients to whom level 1 orders apply

(1) Section 24(1)—delete 'or any other illness'

(2) Section 24(4)—delete ', or to prescribed treatment within the meaning of the Guardianship and Administration Act 1993'

4B—Amendment of section 28—Treatment of patients to whom level 2 orders apply

(1) Section 28(1)—delete 'or any other illness'

(2) Section 28(3)—delete ', or to prescribed treatment within the meaning of the Guardianship and Administration Act 1993'

4C—Amendment of section 31—Treatment of patients to whom level 3 orders apply

(1) Section 31(1)—delete 'or any other illness'

(2) Section 31(3)—delete ', or to prescribed treatment within the meaning of the Guardianship and Administration Act 1993'

I ask the government to outline where else a practitioner outside the area of expertise would be given this authority to treat without it being in their sole area of expertise. My example given was whether we will see psychiatrists able to order abdominal surgery and what safeguards have been put in place to ensure that this would not happen?

The Hon. R.P. WORTLEY: With regard to the Hon. Ms Franks amendment, I understand the intention of these amendments is to address concern that a person under an inpatient treatment order can also receive treatment for any other illness during the period of order, even if he or she cannot give or refuses consent to that non-mental health treatment. On the face of it, I understand the concerns; nevertheless I do not necessarily agree that applying the provisions of the Guardianship Act to authorise consent to physical treatment, while a person is under provisions of the Mental Health Act, would be in the person's best interests.

The government does not support this amendment because, when a person is mentally unwell, his or her physical health is also vulnerable. Many people with recurring or cyclic mental health illness have reduced life expectancy because of physical neglect that often accompanies their mental state. It is not always possible to separate physical and mental health issues. Feedback from carers' consumer representatives states quite strongly in some cases that treatment for illnesses other than mental illness should stay in the act. An inpatient who is very depressed may self harm, require sutures to repair wounds and antibiotics to avoid infection. Another may require enforced regurgitation of ingested tablets following an overdose attempt.

There would not appear to be any benefit to a person under an inpatient treatment order, who is in a delusional state or lacking insight and refusing to comply with, for example, their diabetes or anti-hypertension treatments, to have to attend a hearing of the Guardianship Board and have a guardianship order with section 32 powers placed on them in order to ensure their physical wellbeing. It would not be in accordance with the principles of the Guardianship and Administration Act, nor the Mental Health Act. It is better for someone to complain that they were made well, without their consent or against their will, than to have an injury go untreated or their health deteriorate when they are mentally impaired and subject to an order.

Prescribed treatment under the GAA includes termination of pregnancy and sterilisation (to make infertile). These are significant and specialised procedures. It is essential that decisions about them are addressed under the provisions of the GAA and scrutiny of the Guardianship Board, and that they are not dealt with as part of mental and general health care. Therefore, the clause should remain.

The Hon. J.M.A. LENSINK: The Liberal Party agrees with the government on this amendment.

New clauses negatived.

Clause 5 passed.

Clause 6.

The Hon. A. BRESSINGTON: I move:

Page 4, line 15 [clause 6(1), inserted paragraph (c)(iii)]—After 'or' insert:

, if consent cannot be given by the parent or guardian,

As I detailed in my second reading contribution, this amendment seeks to affirm the parental responsibility and, dare I say it, the right to say no to their child undergoing electroconvulsive therapy. The bill currently enables a psychiatrist, who insists upon a child having ECT, to essentially appeal a parent's refusal to the Guardianship Board. My amendment will retain the ability for the Guardianship Board to determine a request for ECT in those cases in which a parent is unable to provide consent, say due to incapacity. However, those parents able to make decisions on their child's behalf will be empowered to do so and their decision will be respected and not sought to be overruled by a psychiatrist intent on administering ECT.

I am aware that the minister has sought the assistance of the SA branch of the Royal Australian and New Zealand College of Psychiatrists to oppose my amendment, to which they dutifully complied. In doing so, they argue that ECT on minors is rare but that where, and I quote:

...consent for ECT is denied by a parent or guardian and a psychiatrist forms the opinion that ECT may be potentially lifesaving for the child, it would be in the best interest of the child for the decision to be referred to an independent statutory authority such as the Guardianship Board.

Putting aside their clear disregard for the views of parents, the college frames the government's proposal in the context of 'potentially lifesaving for the child'. While I have argued that ECT is not the same as a blood transfusion or surgery to remove appendix or any other urgent type of lifesaving treatment, even if it is considered to be lifesaving, nothing in the government bill or the Mental Health Act 2009 requires the Guardianship Board to assess whether the use of ECT is lifesaving or even potentially lifesaving in the circumstances. There are no guidelines as to what 'lifesaving' means, no guidelines at all.

In fact, the only statutory assessment that I can find is in subsection 42(1) and that is merely whether the patient has a mental illness and, if so, whether ECT has been authorised for treatment of the illness by a psychiatrist who has examined the patient, which in these circumstances will be the psychiatrist applying to the Guardianship Board for consent. Nothing compels the Guardianship Board to adjudicate on whether ECT is lifesaving in the circumstances nor despite its current practice to hear from the parents who are objecting to its use. How this can satisfy anyone that this safeguard warrants overriding—and, in effect, ignoring—a parent's decision is absolutely beyond me.

I could give some examples of where children may have been sexually abused, and that is the reason for their depression and they have only ever disclosed that to their parents. Their parents may be in the process of having that sexual abuse dealt with. A psychiatrist would then come along and say, 'No, we will just administer ECT because this child is suicidal and depressed,' and the parents know full well what the cause of this is and are taking action to have the matter resolved and dealt with, and their right to seek the treatment that they believe is appropriate for their child is then overridden by a psychiatrist. I urge members in here who have children to step back and think whether you really want this kind of interference when parents are capable of making decisions in their child's best interest. Do you want that right to remain in the hands of a psychiatrist who may not know what has gone on in that child's life?

The Hon. R.P. WORTLEY: The government does not support this amendment. The intention of the new wording of section 42 in the government's Mental Health (Inpatient) Amendment Bill is to make it clear that parents and guardians are empowered as consent providers where ECT is to be administered to children. This authority does not change. It is the removal of ambiguity for clinicians that changes.

The case that led to the bill's amendment involved parents who were happy to consent because of ambiguity in the current wording of section 42 of the act. The psychiatrist made an application to the Guardianship Board. The board held an urgent hearing and approved the treatment. Under the government's bill it is now clear that parents can consent to ECT treatment for children. Furthermore, the amendment would only allow the Guardianship Board to provide consent to ECT for a child when a parent cannot consent instead of maintaining the board's arbitrary role to consider consent issues rather than resorting to courts.

As circumstances require—for example, where parents may be in dispute or feel unable to consent—the Guardianship Board, the Public Advocate and outposted crown solicitors in the Department for Communities and Social Inclusion have all provided views opposing the amendment, as has the Royal Australian and New Zealand College of Psychiatrists which the member referred to earlier. The issue is similar to the provisions in other acts for non-mental health crisis where a doctor, when faced with parents who do not or cannot consent, can get the matter considered by the independent third party with the child's best interests being paramount.

The Hon. J.M.A. LENSINK: The Liberal Party does not support this amendment. We understand the intent but also that the issue relates to ambiguity regarding psychiatrists rather than to parental consent.

The Hon. D.G.E. HOOD: Just for the record, Family First does support the amendment. We believe that only in the most extreme circumstances should the direct responsibility that parents have for the welfare of their children be placed in the decision-making capability of others.

Amendment negatived; clause passed.

Remaining clause (7), schedules and title passed.

Bill reported without amendment.

Third Reading

The Hon. R.P. WORTLEY (Minister for Industrial Relations, Minister for State/Local Government Relations) (16:15): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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