Bills

Statutes Amendment (SACAT) Bill

Final Stages

Consideration in committee of the House of Assembly's message.

(Continued from 20 November 2014.)

Amendments Nos 5 and 6:

The CHAIR: When we last discussed this issue the minister was looking at amendments Nos 5 and 6. I think the minister moved that the council not insist on its amendments Nos 5 and 6, but make an alternative amendment. Does the minister wish to seek leave to withdraw?

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

Leave granted; amendment withdrawn.

The Hon. S.G. WADE: I thank the Chair and the council for its indulgence so that we could make sure we have the procedure in mind going forward; I think that will save us time. First, I should acknowledge the leadership of the Hon. John Darley in relation to this issue. The issue that the Hon. John Darley identified was his concern that the bill, as it originally stood, had the potential to extinguish the legal entitlements of current members of predecessor bodies. There was significant disagreement as to how best that should be dealt with.

It would be fair to say that the parliament experienced some frustration at the advice the government was receiving from the crown in relation to what I would say was the executive interest in protecting itself in any potential future legal proceedings, and in what this parliament had a legitimate interest, which was to understand the impact of bills being put before it.

Having said that, I am pleased to inform the house that it is my understanding that, in consultation with the Hon. John Darley, and in particular the Hon. Mark Parnell and the government, a suggested alternative amendment is been put before the council. I am certainly moving it, but it is the result of collaborative work, and in that context I also acknowledge the constructive engagement of the Attorney's adviser, Mr Will Evans. I now formally move my alternative amendment:

That the Legislative Council not insist on Amendments Nos 5 and 6 but make the following amendment in lieu thereof:

Clause 98, page 36, lines 16 and 17—

Delete '(and no right of action will arise against a Minister or the State on account of that termination)' and substitute:

(but any such termination will not affect any right of action that a person may have against a Minister or the State on account of that termination)

The Hon. G.E. GAGO: I rise to say that the government supports the amendment.

The Hon. M.C. PARNELL: I do not want to take a lot of time, but we have agonised over this for a couple of weeks, so I think it is worth just putting on the record that I am glad that we have reached this resolution. The Greens will be supporting this alternative amendment. It strikes me as quite odd and unfortunate that a piece of legislation which we have all come to accept is going to be a good and exciting initiative for the resolution of a range of disputes in South Australia could so easily have been derailed by what is ultimately a fairly petty industrial dispute. I am glad now that we have reached a resolution. I, too, would like to thank the Hon. John Darley for persevering with this, and I am glad that we have finally reached a resolution.

The Hon. J.A. DARLEY: I am glad that we have now reached an agreement on this matter, and I will be supporting the amendment.

Motion carried.

Amendment No. 8:

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

That the Legislative Council not insist on amendment No. 8.

I note that amendment No. 8 is related to amendment Nos 10, 11 and 12, which is a series of opposition amendments successfully passed in this chamber to extend the existing free legal representation scheme for certain Mental Health Act appeals to original hearings. Currently, section 81 of the Mental Health Act 2009 provides for a person to appeal against a treatment order made by a medical practitioner to the Guardianship Board. Section 84 of the Mental Health Act 2009 provides for the person to be represented at that appeal by a legal practitioner at no cost to the person and the practitioner's fees paid by the minister under a regulated scheme.

Neither the Mental Health Act nor the Guardianship and Administration Act provides for legal representation at no cost to the person at Guardianship Board hearings to consider applications for level 2 community treatment orders or level 3 inpatient treatment orders. The opposition's amendment as passed by this chamber changed that by amending section 84 of the Mental Health Act.

In accordance with an undertaking given recently to the opposition to secure support for this motion, I wish to advise the chamber that the Minister for Mental Health will transfer the funds for the scheme currently administered by SA Health to the Attorney-General's department. This transfer will occur once SACAT has commenced operations in 2015.

I am advised that discussions have taken place between the Attorney-General's department and the director of the Legal Services Commission regarding the establishment of a new scheme regarding the provision of legal representation to people with mental health issues, and I am pleased to advise that the Legal Services Commission is supportive of the concept of providing a legal advisory service in relation to matters before SACAT pursuant to the Mental Health Act.

Further work will be progressed over the upcoming months to develop this initiative with the Attorney-General's department. In relation to the proposed commencement date of a new legal representation scheme, this will be considered in conjunction with the review of the Mental Health Act.

The Hon. S.G. WADE: In relation to the two further issues that the council will be considering, I would not want to give the impression that the Liberal Party had a spontaneous idea without a heritage. The fact of the matter is that the issue of legal representation for people in a mental health review function and the issue of the appropriate composition of tribunals have been significant concerns in the mental health community for some time. We were disappointed with the lack of consultation with the mental health community in the development of the SACAT Act. In earlier stages of this bill's consideration I had paid tribute to the work of the SACAT implementation teams in remedying that defect when it has been highlighted to them.

This issue of legal representation and the mental health review function has been around for a long time and there has been a very disappointing lack of progress. Whilst the parliament is not in a position to develop, let alone fund, such a scheme, I think the parliament welcomes the opportunity to nudge the executive towards that goal. One of the issues that has inhibited the progress of a broader legal representation scheme in the mental health jurisdiction has been the fact that there have been two pools of funds—one in the health portfolio, one in the justice portfolio. I thank the Attorney-General for meeting me and other members of the Liberal opposition and when this issue was raised with him, he undertook to raise it with the Minister for Health and a memo resulted.

This house has on a number of occasions talked about concern about correspondence and undertakings that are not available to the house and so in that context I propose to read onto the record the minute from the Hon. Jack Snelling, Minister for Health and Substance Abuse, to the Attorney-General which provides some of the foundation for the Liberal Party support for the council not insisting on this and relating amendments. The memorandum is dated 17 November 2014 and the subject is transfer of funding for scheme—section 84 Mental Health Act 2009:

A scheme is currently in effect under section 84 of the Mental Health Act 2009 ('the Act') for the provision of legal representation and appeals to the Guardianship Board under Part 11 of the Act. The legal representation is made available to the persons to whom the appeal proceedings relate.

The funding for the scheme ($140,000) is currently administered by my Department.

As you know, it is proposed by the Government under the Statutes Amendment (SACAT) Bill 2014 that the scheme under section 84 of the Act remain in operation after the transfer of the board's jurisdiction to the South Australian Civil and Administrative Tribunal (SACAT), with some minor amendments to section 84 consequential upon the transfer of jurisdiction to SACAT.

I confirm our agreement that, on the commencement of SACAT in 2015, the annual funding of the section 84 scheme will be transferred from my Department to the Attorney-General's Department where the funding will thereafter be administered for the purposes of the scheme.

I welcome that as an opportunity to nudge on the development of the legal representation scheme. I think it is also more appropriate that the justice portfolio should provide oversight of the scheme rather than the health portfolio.

I understand the minister's statement in the start of this consideration was an undertaking to develop a legal representation scheme and I certainly welcome her advice to the council, which I think is the first time the parliament has been informed that the government will be looking the Legal Services Commission to develop such a scheme. The Legal Services Commission certainly has a proud and long tradition of providing legal representation, particularly to vulnerable members of our community.

I put on record that the opposition will be monitoring progress and will seek to introduce amendments if progress is not clear. For example, there will be an opportunity with the next tranche of SACAT jurisdiction changes for progress to be reviewed and also with the outcomes of the Mental Health Act Review which the health department is currently undertaking. In that context I have three questions for the minister. How long does the government expect it will take to open the doors to a legal representation scheme under the new arrangements?

The Hon. G.E. GAGO: I have been advised that there is no date that has been set as yet. They have been focusing their efforts obviously on setting the thing up, but I am advised that negotiations continue between the president and the registrar. The chamber will be updated accordingly.

The Hon. S.G. WADE: The president and the registrar are both officers of SACAT. I would be more interested in the views of the Legal Services Commission, but let the government note that this parliament will be actively monitoring progress. I would have thought it would be quite reasonable for this council to expect such a scheme to be able to be operational within 12 months. Another question: I ask when the next tranche of SACAT amendments is expected to be brought before this parliament.

The Hon. G.E. GAGO: Just in relation to my answer to the previous question, I may not have made myself clear that the president and the registrar are in fact negotiating with the Legal Services Commission, not between themselves, in case I misled you in that way. In relation to this second question, they are currently being drafted. They are working towards or hoping to have them being introduced by the end of the first half of next year, but the progress has been delayed particularly with the protracted negotiations around this bill.

The Hon. S.G. WADE: I appreciate the minister and her officers may not have the information in relation to this next question but, if not, I would appreciate it being taken on notice. As I mentioned, the outcomes of the Mental Health Act review are expected shortly and I wondered if the minister was aware when the legislation coming out of the mental health law review is likely to be brought before the parliament?

The Hon. G.E. GAGO: That is obviously a question for the Minister for Health and we will pass that question on to him.

Motion carried.

Amendment No. 9:

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

That the Legislative Council not insist on amendment No. 9 and makes the following amendment in lieu thereof:

Clause 119, page 40, after line 4—Insert:

(5a) Section 81—after subsection (2) insert:

(2a) For the purposes of conducting a review under this section, the Tribunal must not be constituted by a medical practitioner sitting alone.

Clause 122, page 41, after line 32—Insert:

(da) the constitution of the Tribunal must be consistent with the following requirements for an internal review in the following cases:

(i) in the case of an internal review that relates to an order of the Tribunal under section 16 or 29—the Tribunal must not be constituted by a medical practitioner sitting alone;

(ii) in the case of an internal review that relates to a review under section 81—the Tribunal must be constituted by 3 members;

This amendment reflects the recent compromised position reached with the opposition regarding the constitution of the tribunal for hearing certain reviews and internal reviews under the Mental Health Act 2009, which I will just briefly explain. Firstly, one outcome of this amendment is to eliminate the current practice of a psychiatrist alone reviewing the decision of a colleague for the purposes of an appeal under the Mental Health Act.

This has been the subject of concern both in this chamber and during the consultation on this bill as to the conferral of the Guardianship Board jurisdiction upon the SACAT. The amendment expressly states that, for the purposes of a review conducted under section 81 of the Mental Health Act 2009, the tribunal must not be constituted by a medical practitioner sitting alone. This will also be the case for an internal review under part 5 of the South Australian Civil and Administrative Tribunal Act 2013 of a decision by the tribunal under sections 16 or 29 of the Mental Health Act.

The second limb, if you like, of this amendment is to enshrine in legislation the requirement that the tribunal be constituted by three members for all internal reviews under part 5 of the South Australian Civil and Administrative Tribunal Act 2013 that arise from a review under section 81 of the Mental Health Act. Currently, section 81 allows for a person who is dissatisfied with a community treatment order or inpatient treatment order, other than an order made by the Guardianship Board, to appeal to the Guardianship Board for a review of that order. The function of the Guardianship Board will be substituted by the tribunal once this jurisdiction is conferred.

The Hon. S.G. WADE: The minister in her comments acknowledged that this discussion, too, was collaborative, and I certainly agree with her on that. In that regard, I would like to recognise that the issue was raised early this year. I think it was on 6 May that the Chief Psychiatrist's report on the Mental Health Act was released and he specifically raised his concerns about sole psychiatrists reviewing the decision of a sole psychiatrist. Likewise, to his credit, Justice Parker, the head of the SACAT, also expressed his concerns about the practice in correspondence in relation to the progress of this bill.

As I mentioned earlier, a number of these concerns are shared and the parliament, if you like, had the opportunity to try to facilitate the implementation of what was seen as a shared objective. In relation to the second element, which is reserving the right of a client to a three-person tribunal in relation to section 81 appeals, it was the opposition's view that it is not appropriate to diminish the entitlements that clients currently have, and I thank the government for acceding to that view.

Motion carried.

Amendment Nos 10 to 12:

The Hon. G.E. GAGO: For the reasons I have explained at Amendment No. 8, I move:

That the Legislative Council not insist on Amendments Nos 10, 11 and 12.

Motion carried.

Amendment Nos 13 and 14:

The Hon. S.G. WADE: I am not sure procedurally if I am getting out of line, but I propose that we not insist on these and that the amendments that I have distributed be preferred. I move:

That the Legislative Council not insist on Amendments Nos 13 and 14 but makes the following amendment in lieu thereof:

Clause 181, page 57, lines 17 and 18—

Delete '(and no right of action will arise against a Minister or the State on account of that termination)' and substitute:

(but any such termination will not affect any right of action that a person may have against a Minister or the State on account of that termination)

The Hon. G.E. GAGO: For reasons I have already explained at amendment Nos 5 and 6, the government supports the motion of the Hon. Stephen Wade.

Motion carried.

Amendments Nos 16 and 17:

The Hon. S.G. WADE: I move:

That the Legislative Council not insist on Amendments Nos 16 and 17 but make the following amendment in lieu thereof:

Clause 203, page 65, lines 37 and 38—

Delete '(and no right of action will arise against a Minister or the State on account of that termination)' and substitute:

(but any such termination will not affect any right of action that a person may have against a Minister or the State on account of that termination)

Motion carried.