Mental Health Bill

05 Mar 2009 archivespeech

This speech is in relation to the Mental Health Bill. The Hon. J.M.A. LENSINK expresses that she believes the bill will be of even more importance to people who are detained or who are subject to orders in the future.

The Hon. J.M.A. LENSINK (15:43): I thank the council for its indulgence in allowing me to seek leave to conclude my remarks as, inevitably, with a bill that has this much depth to it and has had so much input from various stakeholders, I would forget details. I regret to say that I did forget certain details about which I have questions. For the benefit of the drafters of the answers, I will place those on the record this afternoon and add a few other comments. I would also like to note the pivotal role that the Guardianship Board plays in administering the various provisions of the Mental Health Act which, I think in this bill before us, will be of even more importance to people who are detained or who are subject to orders in the future. I would like to place on the record the concern I have that the board be adequately resourced to fulfil that role. I did ask in my previous contribution about the status of the revision to that act and whether the government has any plans to provide more resources or alter the administration of the Guardianship Board in any way.

I would also like to know the status of the review of the memorandum of understanding between various agencies, which, in the House of Assembly version, was on page 9 of the report. At the bottom of page 9, it states that it is planned that the memorandum of understanding between the Department of Health, Ambulance Services, the police and the Royal Flying Doctor Service will be updated prior to the new act coming into force. I would like to know the status of that MOU. On page 13 of the same edition of that report, which was tabled in the House of Assembly on 7 November last year, there is reference to legal representation. In the second paragraph on that page, it states that patients can appeal at any time against any order and legal representationfor appeals will continue to be provided. I have made the notation 'More info please'. The second sentence begins with the words:

A range of people may make an application to the Board for a variation or revocation of a long term Community Treatment Order or a Detention and Treatment Order, both of which are made by the Board.

I have made the notation 'Who?' in relation to 'A range of people'. On my reading of the matter, similar requirements exist that a psychiatrist must review a level 1 or, in the current act, an equivalent, within 24 hours. Does the minister have any data about the percentage of persons who are reviewed within the guidelines versus what percentage fail to meet the aspirational target?

I note the preference is within 24 hours in relation to the language 'as soon as practicable', but that is not always possible. As I mentioned in my previous contribution, the lack of staffing may contribute to these things, and I think we need to be very mindful that a lack of planning for additional needs does not lead to an inferior service.

My alternative question is: what is the average number of hours before an order is reviewed? The only reason I ask that question is that the fallback position of 'as soon as practicable' may not alert anyone to when the system is under pressure; for instance, an average of two days would, in my view, be unacceptable.

The final issue I refer to is the matter of privacy. I do have reservations about the way in which the bill has been drafted in relation to information that may be provided to other people and so forth. My concern is with people I will call 'busybodies', for want of a better word, going to a hospital or asking a medical practitioner for information, without having a valid reason for so doing, in relation to a person who is subject to an order. This is indeed a very vexed question because, on the other side of the ledger, I have spoken to many parents, particularly in relation to adult children, for whom they could not strictly be categorised as 'carers' in the strictest sense, as framed by the Carers Recognition Act. They say that they can call the hospital when their son or daughter is detained, but they are never told anything. They are certainly not telephoned in a proactive way, so as to include them as part of the treatment process. This is very frustrating, and I think it causes a parent a lot of distress. As they quite rightly say, they are the ones who are required to pick up the pieces when their son or daughter is discharged from hospital, and I think trying to find where the balance lies is quite tricky.

The Bidmeade report is the instructive means of determining this. Mr Bidmeade, in chapter 7 of his report entitled 'The confidentiality barrier to sharing of information', made the following recommendations:

7.1 Barriers to proper disclosure of information should be removed as a matter of urgency by legislative change.

7.2 There should also be professional development of mental health staff on mental health law, and duties of care and confidentiality.

In relation to the second recommendation, my questions for the government are: does it have any plans, and has it prepared a package of information to be distributed when this bill is passed to ensure that staff are aware of where the line is drawn in relation to that sharing of information? I think it is fair to say that stakeholders have varying views as to where the line should be drawn and, if the patient says no, whether or not that should be overridden. This relates to clause 96 in the new bill, which is quite different from the old act. I think it is better than the old act, which I think was a barrier to the sharing of information. It is particularly vexed because, in the case of psychosis (and I have spoken to families where this is the case), the son or daughter's version of reality is quite different from that of their parents and it may, indeed, have been the parents who triggered the detention that was obviously required. However, the circumstances under which people have been detained, certainly in the past, might have been very traumatic for everyone involved—the police are called out, an ambulance may be called and the person is handcuffed or chemically restrained and taken to hospital. In many cases, that has damaged the level of trust between parents and their children. The children can become quite suspicious of their parents and explicitly state to the hospital staff that they do not wish their parents to be informed of any aspect of their treatment, which may include when they are discharged from hospital, in which case, as I said, the parents may be required to pick up the pieces.

Subclause (4), which some people, in the legal profession in particular, have urged us to delete, basically means that, for any person who is subject to a community treatment order or a detention and treatment order, any conditions attached to whether or not the person consents to provide that information do not apply. So, it is quite a different situation with respect to voluntary patients and involuntary patients. The people who may have information disclosed to them are covered under subclause (2)(c), which refers to 'disclosing information to a relative, carer of the friend or person'. So, that is fairly broad. I accept that this clause is identical to the one contained in the Health Care Act. For that reason, it has been drafted to ensure that it is consistent. However, I have some reservations that this may have been drafted a little too broadly, notwithstanding the fact that my sympathies are with the families, and particularly with the parents of people who have a mental illness, those parents having been frustrated by their dealings with the system over many years. I look forward to the committee stage of the debate.