Hansard debates

Mr FOLEY (Minister for Mental Health) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (charter), I make this statement of compatibility with respect to the Mental Health Amendment Bill 2015.

In my opinion, the Mental Health Amendment Bill 2015, as introduced to the Legislative Assembly, is compatible with human rights as set out in the charter. I base my opinion on the reasons outlined in this statement.

Overview

The Mental Health Act 2014 established a new legislative scheme to regulate the compulsory assessment and treatment of persons with severe mental illness. The act imposes limitations on many of the human rights set out in the charter. However, those limitations are considered to be reasonable and demonstrably justifiable because the act provides for assessment and treatment in the least restrictive way possible, with the least possible restrictions on human rights and dignity subject to the creation of a number of safeguards.

This bill amends the Mental Health Act 2014 (the act) to enable the transfer and return of a forensic prisoner to a designated mental health service to obtain compulsory treatment. It also makes various amendments to address operational and policy issues identified following the implementation of the act on 1 July 2014.

Human rights issues

Human rights protected by the charter that are relevant to the bill

The following rights are relevant to the bill:

Section 10(a) (b) — protection from torture and cruel, inhuman or degrading treatment
Section 10(c) — right not to be subjected to medical treatment without informed consent
Section 12 — freedom of movement
Section 13 — privacy and reputation
Section 15 — freedom of expression
Section 17 — protection of families and children
Section 21 — liberty and security of the person
Section 22 — humane treatment when deprived of liberty
Section 24 — fair hearing

I am of the opinion that the bill is compatible with the charter. Having regard to the wording of the bill and its expected operation, I consider the bill either does not limit these rights or the limitations imposed are reasonable having regard to the factors set out in section 7(2) of the charter.

Forensic prisoners

Compulsory mental health treatment cannot be provided in prison. Section 306 of the act enables the Secretary to the Department of Justice and Regulation to transfer a forensic prisoner to a designated mental health service if the person requires compulsory mental health treatment.

A forensic prisoner is a person who is in prison subject to a custodial supervision order made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. A court may impose a custodial supervision order when a person charged with a criminal offence is unfit to stand trial, or was mentally impaired at the time the offence was committed.

A court may only make a custodial supervision order committing a person to custody in a prison where there is no practicable alternative in the circumstances.

If a forensic prisoner is transferred under section 306, currently there is no readily accessible legal mechanism in the act for returning such a 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 back to prison. This does not enable a timely response to the changing needs of the person detained. Clauses 25, 28 and 29 of the bill enable forensic prisoners to return to prison in accordance with their original court order when they no longer need compulsory treatment.

The bill repeals section 306 and enables forensic prisoners to receive compulsory treatment and return to prison using the same provisions that apply to ordinary prisoners.

The transfer and return to prison of forensic prisoners for compulsory treatment is most relevant to the rights in sections 10, 12, 21, 22 and 24 of the charter. The bill raises the threshold for compulsory treatment for forensic prisoners by changing the transfer criteria to require the person to need 'immediate' treatment to prevent serious deterioration in the person's health or serious harm to the person or any other person. The bill also requires that transferring a forensic prisoner must be the least restrictive means reasonably available to enable the person to receive treatment.

The bill will ensure forensic prisoners, like ordinary prisoners, are only detained in a designated mental health service for as long as is necessary to receive compulsory treatment. The person will be returned to prison as soon as the authorised psychiatrist determines that the criteria for compulsory treatment no longer apply.

The bill makes the detention of a forensic prisoner who has transferred to a designated mental health service as a security patient, subject to review by the Mental Health Tribunal. This is consistent with both the right to humane treatment under section 22 and the right to a fair hearing under section 24 of the charter. Security patients are required to be reviewed by the tribunal within 28 days of being received at a designated mental health service and may apply to the tribunal at any time to be discharged and returned to prison.

Inpatient's right to communicate

Section 16(2) of the act prohibits restrictions being placed on an inpatient's right to communicate with their legal representative, the chief psychiatrist, the Mental Health Complaints Commissioner, the Mental Health Tribunal or a community visitor. Clause 6(2) of the bill allows additional persons or bodies to be prescribed in the regulations as persons or bodies with whom communication cannot be restricted.

This clause is most relevant to the right to freedom of expression in section 15 of the charter. The bill supports this right by enabling greater flexibility about with whom an inpatient can communicate while the inpatient is subject to a restriction on communication. For example, it is anticipated that once established, mental health advocates will be prescribed by regulation to assist such inpatients.

Section 17 of the act requires 'a carer' to be notified of a restriction on an inpatient's right to communicate.

Clause 7 of the bill restricts the obligation to notify a carer to circumstances where the restriction on communication 'will directly affect the carer and the care relationship'.

This is consistent with the right to privacy in section 13 of the charter because it amends the act to specify more precisely the circumstances in which an interference with privacy is permitted. Thus, any interference with privacy is both lawful and not arbitrary. The bill requires there to be an impact on the carer or the care relationship to justify the disclosure of information about an inpatient and in this way balances the patient's need for privacy with the carer's legitimate need to know information where a decision affects their interests.

Facilities and supplies to be provided to a person subject to a restrictive intervention

Section 106 of the act requires a person who 'authorises' the use of a restrictive intervention to provide appropriate facilities and services to the person subject to the intervention. The obligation does not extend to a registered nurse who approves urgent bodily restraint under section 115 of the act.

Clause 14 of the bill extends the obligation to provide appropriate facilities and supplies to any person who 'authorises' or 'approves' the use of a restrictive intervention.

This clause is most relevant to the right to humane treatment when deprived of liberty in section 22 of the charter. The right to humane treatment provides that all persons deprived of liberty must be treated with humanity and respect. The right recognises the particular vulnerability of persons in detention and requires that detained persons ought not to be subject to any hardship or constraint other than those resulting from the deprivation of liberty. The bill requires anyone who initiates a restrictive intervention under the act to ensure that the needs of the person subject to the intervention are met and that persons subject to an intervention have their dignity respected.

Privacy obligations applying to clinical practice or clinical reviews

Section 140(3) of the act permits the chief psychiatrist to use or disclose information where it is necessary to prevent serious 'or' imminent harm to a person's health or safety.

Clause 18(1) of the bill requires the harm to be both serious 'and' imminent before the chief psychiatrist can use or disclose the information. This clause is most relevant to the right to privacy in section 13 of the charter. The bill raises the threshold for the disclosure of information by requiring the harm to be serious and imminent, consistent with the charter's recognition that a person's privacy should not be unlawfully or arbitrarily interfered with. It also ensures consistency with a comparable provision for the Mental Health Complaints Commissioner. Section 249(1) of the act only permits disclosure by a conciliator to prevent serious 'and' imminent harm.

Notice of Mental Health Tribunal hearing

Section 189(1)(g) of the act requires the Mental Health Tribunal to give written notice of hearings to carers when the tribunal is satisfied that the hearing 'will directly affect the carer and the care relationship'.

Clause 20 of the bill removes the requirement for the tribunal to consider the impact of the hearing on the carer or the care relationship when notifying carers. This clause is most relevant to the right to privacy in section 13 of the charter. The clause lowers the threshold for disclosure because it does not specify the precise circumstances that justify notification. Instead, disclosure is based on the person having the status of a carer.

The right to privacy is not absolute in international law and may be subject to reasonable limitations. To the extent that this provision may limit the right to privacy, the purpose of the clause is to enable the tribunal to notify carers and afford them the opportunity to attend the hearing to support the patient and/or participate in the proceedings. This overcomes the practical problem that prior to a hearing the tribunal is unable to assess the impact of the hearing on a carer or the care relationship. Being able to notify carers also assists the tribunal to make a determination based on the most complete information about the patient's current circumstances.

The nature of any limitation is lawful, proportionate and not arbitrary. 'Carer' is a defined term in the act and it requires the person to be in a care relationship with the person who is the subject of the proceedings. The nature of the information disclosed by the hearing notice is limited to the hearing particulars, the subject matter of the hearing and rights information.

Notification of carers does not of itself make carers a party to the proceedings. In the circumstances, I consider any limitation on the patient's right to privacy to be reasonable.

Making a secure treatment order

The act enables the Secretary to the Department of Justice and Regulation to make a secure treatment order for compulsory treatment when certain criteria apply. Section 276(1)(b)(iii) provides that one of the criteria for making a secure treatment is that 'immediate treatment will be provided to the person if the person is made subject to a secure treatment order'.

Clause 25(1) of the bill amends this criteria to provide that 'the' immediate treatment will be provided to the person if the person is made subject to a secure treatment order.

This clause is most relevant to the rights in sections 10 (the right not to be subjected to medical treatment without full, free and informed consent), 21 (the right to liberty and security of person) and 22 (humane treatment when deprived of liberty) of the charter. The bill is consistent with these rights because it specifically limits the compulsory treatment to be provided under a secure treatment order to the treatment described in section 276(1)(b)(ii) that is, compulsory treatment which is needed to prevent serious deterioration or harm.

Application to perform ECT on a young person

The act requires that informed consent to electroconvulsive treatment by an adult patient must be provided personally by the patient and not by a substitute decision-maker such as a guardian. By contrast, section 94(1)(a) and (2)(a) of the act, which provide for consent to electroconvulsive treatment by a young patient or a young person does not expressly require the personal informed consent of the young person.

Clause 13(1) of the bill provides that the informed consent of the young person must be personal and not that of a substitute decision-maker such as a parent.

The clause is most relevant to the rights in sections 10, 17 (best interests of the child), 21 and 22 of the charter. The bill recognises that where a young person has capacity it is the young person's informed consent that is relevant to the making of the application to the Mental Health Tribunal for electroconvulsive treatment. This is consistent with the supported decision-making model of the act that empowers young people to make or participate in decisions about their own treatment. The bill does not alter the requirement that the tribunal must authorise all electroconvulsive treatment for young patients and young persons.

For the reasons outlined it is my view that the Mental Health Amendment Bill 2015 is compatible with the Charter of Human Rights and Responsibilities Act 2006.

Martin Foley, MP
Minister for Mental Health