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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-07-05 Daily Xml
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Mental Health (Review) Amendment Bill

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: If I could, I would just like to indicate that the opposition appreciates the responses we received from the government in relation to the queries of the Aboriginal Health Council. We have had the opportunity to consult the council, and they appreciated the advice. The opposition will not be proposing any amendments as a result.

Clause passed.

Clauses 2 to 20 passed.

Clause 21.

The Hon. P. MALINAUSKAS: I move:

Amendment No 1 [Police–1]—

Page 13, lines 2 to 4 [clause 21(5), inserted subsection (7)]—

Delete 'A psychiatrist or authorised medical practitioner who has examined a patient to whom a level 2 inpatient treatment order applies may, once only, extend the order' and substitute:

A level 2 inpatient treatment order may, once only, be extended by a psychiatrist or authorised medical practitioner (other than the psychiatrist or authorised medical practitioner who made the order) who has examined the patient to whom the order applies

The Hon. S.G. WADE: It would be useful for the committee to have an explanation as to why the amendment is necessary.

The CHAIR: You should have said, 'We support the amendment with explanation.' Minister, would you like to give an explanation for the amendment?

The Hon. P. MALINAUSKAS: The remarks I have available to me at this point—I am happy to get more if the honourable member would like it—are that a number of amendments to section 25 are consequential. The clause includes an amendment that corresponds to the earlier amendments relating to the making of treatment orders and the impaired decision-making capacity of a person with mental illness. The clause amends section 25 to enable a psychiatrist or authorised medical practitioner to extend a level 2 inpatient treatment order for a further maximum period of 42 days. Does that suffice?

The Hon. S.G. WADE: Considering this bill has been well consulted and well received, I do not intend to push the issue, but I indicate that my expectation as a member of this council is that, if the government feels it necessary to amend its own bill, it might do us the courtesy of telling us why.

The Hon. P. MALINAUSKAS: My understanding is that the principle objective of the amendment is to provide the patient with additional rights by ensuring that they get access to a second psychiatrist rather than just the initial one.

The Hon. S.G. WADE: I thank the minister for his advice.

Amendment carried; clause passed.

Clauses 22 to 24 passed.

Clause 25.

The Hon. P. MALINAUSKAS: I move:

Amendment No 2 [Police–1]—

Page 13, after line 34—Insert:

(3) Section 29(3)—after 'to whom a' insert 'level 1,'

I understand that this clause makes amendments to section 29 of the principal act that correspond to earlier amendments. It is a consequential amendment.

Amendment carried; clause passed.

Clauses 26 to 67 passed.

New clauses 67A and 67B.

The Hon. P. MALINAUSKAS: I move:

Amendment No 3 [Police–1]—

Page 34, after line 34—Insert:

67A—Amendment of section 79—Reviews of treatment orders and other matters

(1) Section 79(1)(a)—delete paragraph (a)

(2) Section 79(1)—after paragraph (c) insert:

(ca) a review of the circumstances involved in the making of an order to extend a level 2 inpatient treatment order (which review must be conducted as soon as practicable after the making of the order to extend a level 2 inpatient treatment order);

67B—Amendment of section 81—Reviews of orders (other than Tribunal orders)

(1) Section 81(1)—after 'review of the order by the Tribunal' insert:

under section 34 of the South Australian Civil and Administrative Tribunal Act 2013

(2) Section 81(1a)—delete subsection (1a)

(3) Section 81(2a)—delete 'not be constituted by a medical practitioner sitting alone' and substitute 'be constituted of at least 1 medical practitioner and 1 legal practitioner'

(4) Section 81(4) and (5)—delete subsections (4) and (5)

These new clauses amend section 79 to remove the requirement of the South Australian Civil and Administrative Tribunal to automatically review all level 1 community treatment orders and adds the requirement for the tribunal to automatically review all level 2 inpatient treatment order extensions. I understand that this is also a consequential amendment.

In regard to new clause 67B, this amends section 81 to clarify and streamline the protocols for the review of community treatment orders and inpatient treatment orders by the South Australian Civil and Administrative Tribunal.

The Hon. S.G. WADE: I wonder what 'streamline' means in that context.

The Hon. P. MALINAUSKAS: Can you repeat that?

The Hon. S.G. WADE: I ask the minister to clarify what he meant by 'streamlining' in that context—'streamline the consideration by the tribunal'. What is the effect of the clause in terms of 'streamline'?

The Hon. P. MALINAUSKAS: I understand that 'streamlining' refers to streamlining in respect of speeding up of procedure; it is a procedural issue. The changes to section 81 ensure that reviews of community treatment orders and inpatient treatment orders made by health professionals are held within the more appropriate review jurisdiction of the South Australian Civil and Administrative Tribunal. As such, review tribunals must consist of at least one medical practitioner and one legal practitioner. In addition, the changes remove provisions from the Mental Health Act 2009 that duplicate the review provisions from division 3 of the South Australian Civil and Administrative Tribunal Act 2013.

The Hon. S.G. WADE: Considering this bill had been under consideration for so long, why did the government think it was important to add a legal practitioner in that review role?

The Hon. P. MALINAUSKAS: I have been advised that SACAT has a number of legal practitioners who operate within it, obviously, and they made a request that this take place. This accommodates that request.

The Hon. S.G. WADE: So SACAT requested the insertion of a legal practitioner?

The Hon. P. MALINAUSKAS: Yes.

The Hon. S.G. WADE: Could we clarify why we are deleting subsections (4) and (5)? The tribunal has to do something, and it seems to me that:

(4) On hearing a review of an order, the Tribunal must revoke the order, with immediate effect, if the Tribunal is not satisfied that there are proper grounds for it to remain in operation—

is actually almost a statement of principle. We assume that the least restrictive means are used, and if it is not required then it should not be there. I am a bit concerned to see subsections (4) and (5) deleted at such a late stage.

The Hon. P. MALINAUSKAS: I understand that this was the advice that was received from parliamentary counsel about how best to go about drafting the provision.

New clauses inserted.

Remaining clauses (68 to 82), schedule and title passed.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (16:09): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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