Hansard debates

Ordered that second-reading speech be incorporated into Hansard on motion of Ms MIKAKOS (Minister for Families and Children).

Ms MIKAKOS (Minister for Families and Children) — I move:

That the bill be now read a second time.

Incorporated speech as follows:

The Victorian government is committed to achieving better results for people living with mental illness.

We have a well-earnt reputation for progressive mental health policy and quality services, and we plan to build on those foundations.

For this purpose, the government is developing a 10-year plan to articulate strategic directions to improve mental health service delivery in Victoria and deliver these improvements to people over the next decade. A key focus for the reform agenda will be to consolidate and expand the progress already made to implement recovery-oriented practice by public mental health service providers.

Recovery-oriented practice lies at the heart of contemporary mental health service delivery. The aim of this approach is to support people living with mental illness to build and maintain a meaningful and satisfying life and personal identity, regardless of whether or not they have ongoing symptoms of mental illness.

The principle of choice is central to recovery-oriented practice. Enhancing consumer choice has the potential to change the nature of the relationships between service providers, consumers and carers to one based more on dialogue and partnership. Evidence shows that recovery-oriented practice can improve a consumer's experience of service and lead to better health outcomes.

The 10-year plan will be developed in collaboration with consumers, carers, mental health workers and service providers.

Mental health services annual report

In addition to developing a 10-year mental health plan for Victoria, the government has committed to tabling in Parliament a state of Victoria's mental health services annual report.

The Mental Health Amendment Bill delivers on this commitment.

The annual report is intended to include information about the provision of public mental health services during the preceding financial year, including key quantitative data (such as service usage data) and qualitative data (such as results from consumer and carer surveys).

The annual report will also enable the government to report progress against the 10-year plan and to maintain a strong ongoing dialogue with the Parliament and the community about the government's vision for continuous improvement of public mental health services.

This important new initiative resonates strongly with this government's commitment to transparency in government.

The Secretary to the Department of Health and Human Services will prepare and submit the annual report to the Minister for Mental Health and the minister will then ensure the report is tabled in both houses of Parliament.

The final form, content and scope of the annual report will be informed by the development of the 10-year plan and developed in collaboration with key stakeholders. It is intended that the first annual report will be prepared for the 2015–16 financial year.

Forensic prisoners

The bill makes amendments to facilitate treatment of prisoners with a developing mental illness.

The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 enables a court to impose custodial and non-custodial supervision orders for people who are unfit to stand trial or who are found not guilty of an offence due to mental impairment.

A court may make a 'custodial supervision order' that commits a person to custody in an 'appropriate place', such as a designated mental health service under the Mental Health Act 2014. A court may make a person subject to a custodial supervision order in a prison, but only where there is no practicable alternative in the circumstances.

If a person is detained in prison subject to a custodial supervision order and requires compulsory treatment for mental illness, they must be transferred to a designated mental health service for that treatment. Compulsory treatment is not provided in prison. Section 306 of the Mental Health Act currently enables the Secretary to the Department of Justice and Regulation to direct such a transfer.

There is, however, a gap in the legislative scheme. While the Mental Health Act enables a prisoner subject to a custodial supervision order to be taken to a designated mental health service to receive compulsory treatment, there is currently no readily accessible legal mechanism for returning the person to prison when they no longer need compulsory treatment. The only option is to make an application to the Supreme or County courts to vary the place of custody. This process does not enable a timely response to the changing needs of the individual person.

The bill amends the Mental Health Act to enable these people to be returned to prison when they no longer need compulsory treatment. It does this by extending the existing provisions in the Mental Health Act that enable ordinary prisoners to obtain compulsory treatment in a designated mental health service to this group.

These existing provisions allow the Secretary to the Department of Justice and Regulation to direct a prisoner to be transferred to a designated mental health service if certain statutory criteria apply. These include that the person has mental illness and needs immediate treatment to prevent serious harm or serious deterioration in the person's mental or physical health. The secretary must also receive a report from the authorised psychiatrist of the relevant designated mental health service recommending the transfer and stating there are facilities and services available for the detention and treatment of the person.

The authorised psychiatrist must return the person to prison as soon as the statutory criteria no longer apply. The Mental Health Act contains a range of safeguards to ensure treatment is provided in the least restrictive way possible and for the minimum time necessary, including review by the independent Mental Health Tribunal.

These changes will ensure that prisoners subject to custodial supervision orders can appropriately receive compulsory treatment and then be returned to prison in accordance with the original court order.

The amendments do not affect forensic patients detained in a designated mental health service under a custodial supervision order. Forensic patients cannot be transferred to a prison under the new arrangements.

Technical and operational issues

The Mental Health Act is a significant piece of legislation that only came into operation on 1 July 2014. The act delivers major reforms to the public mental health system, placing people with mental illness at the centre of decision-making about their assessment, treatment and recovery.

The Department of Health and Human Services has worked closely with mental health service providers, peak consumer and carer bodies and a range of other stakeholders to prepare for the commencement of the act in July 2014 and to manage implementation following commencement.

This work has identified a number of minor issues which require amendment to the act in order to ensure clarity regarding the intention of the legislation.

Many of the amendments relate to typographical errors. For example the definition of 'psychiatrist' incorrectly refers to the 'Health Practitioner National Law' rather than the 'Health Practitioner Regulation National Law'.

There are also a few instances of inconsistency in the language used in similar provisions in the act which has given rise to some uncertainty. An example is section 17 of the Mental Health Act. This section provides that a carer must be notified if an inpatient's right to communicate has been restricted by an authorised psychiatrist. However, in every other notice provision in the act concerning carers, the carer is only to be notified where the particular decision or action will directly affect the carer and the care relationship. Section 17 is inconsistent with these other provisions and does not properly reflect the policy underpinning the act, which seeks to balance a patient's right to privacy with a carer's legitimate need to know information where a decision affects their interests.

The bill amends the Mental Health Act to correct these minor errors and other inconsistencies.

It has also become apparent that a few provisions in the Mental Health Act are unclear and would benefit from minor amendment to improve clarity without changing the purpose of the provisions.

For example, the Mental Health Act does not specify what the effect is on the duration of an assessment order if it is varied from an inpatient assessment order to a community assessment order before the person is received at a designated mental health service. The bill amends the act to clarify that the duration of the community assessment order is 24 hours from the date and time the initial inpatient assessment order is varied. This reflects the original policy intention that the person should not be subject to an order for a longer period than if the initial inpatient treatment order had not been varied.

Feedback received from stakeholders has also identified some other unintended policy outcomes arising from implementation of the act.

For example, the definition of treatment in the Mental Health Act includes the words '… a person receives treatment for mental illness if things are done to the person in the course of the exercise of professional skills …'.

The response from the mental health sector has been that the words 'done to the person' are not consistent with the philosophy of patient autonomy and the supported decision-making framework that underpins the act. During the implementation of the act, clinicians, consumers and carers have raised concerns that the use of these words is inappropriate and disempowering.

Rather than treatment being 'done to an individual', the act envisages that people receiving treatment under the act will make or participate in the treatment decisions and their views and preferences should be respected.

The bill amends the definition of treatment in the act to reflect supported decision-making in practice.

In another example, the Mental Health Tribunal must give written notice of a hearing to the carer of a patient who is going to appear before the tribunal if the tribunal 'is satisfied that the hearing will directly affect the carer and the care relationship'.

The Mental Health Tribunal has advised the government this is not a practical requirement because the tribunal is not in a position prior to the hearing to assess the impact of the hearing on carers or the care relationship.

The bill amends the act to provide that the tribunal must always give written notice of a hearing to the carer of a person who is the subject of a proceeding before the tribunal.

Forensicare's statement of priorities

The Mental Health Act requires the Victorian Institute of Forensic Mental Health (also known as Forensicare) to prepare a statement of priorities. This requirement was part of a package of reforms under the act to more closely align the governance of Forensicare with other public health services.

The Department of Health and Human Services currently publishes the statements of priorities for all public health services on its website. It is intended to also publish Forensicare's statement of priorities on the website consistent with the government's policies about improving standards of governance, transparency and accountability. However there is uncertainty about the legal basis for publication.

For the removal of doubt, the bill amends the act to enable the Minister for Mental Health to publish copies of Forensicare's statement of priorities and any variations on the department's website.

Changes to the Crimes (Mental Impairment and Unfitness to be Tried) Act

The bill makes two minor changes to the Crimes (Mental Impairment and Unfitness to be Tried) Act to clarify provisions related to the preparation of reports and certificates under that act.

Conclusion

In conclusion, the government is pleased to be introducing legislation that will strengthen transparency in government by establishing a state of Victoria's mental health services annual report and by requiring the report to be tabled in both houses of Parliament.

The bill will also assist mental health service providers to deliver services consistent with the objectives and principles of the Mental Health Act by addressing a number of technical and operational issues identified during the implementation of the act in 2014.

I commend the bill to the house.

Debate adjourned for Ms WOOLDRIDGE (Eastern Metropolitan) on motion of Mrs Peulich.

Debate adjourned until Thursday, 23 April.