You are here

Mental Health Amendment Bill 2022

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Tuesday, 21 March 2023

Tags: Mental Health

Dr WOODRUFF (Franklin) - Mr Deputy Speaker, I indicate that the Greens support this amending legislation. When the Mental Health Act came in, in 2013, it was a huge change. It was the start of a long road to justice for people with mental illness who have needed to seek care, support and therapeutic healing from the state. The history of their treatment is documented and replete with terrible stories of cruelty and abuse and it is a great sadness to think of the lives of people who will never get to experience the sort of just treatment and kind and compassionate treatment that they deserved and never got. There are still families who are grieving for the experiences they have had to endure watching what has happened to people they love suffering with mental illness and not getting the proper and timely care they need.

We warmly welcome the move towards a rights framework, the important understanding about changing and understanding how we achieve true informed consent in the space of people who receive voluntary and involuntary treatment. These are really important matters. The updates of this legislation over the period since 2013 show that it is an evolving conversation in the community, it has not finished. We change as a community and the way that we understand mental illness and respond to it is changing and will continue to change because the expression of mental illness itself is changing in our community.

The rates and the demographic profile of mental illness has changed quite substantially since 2013. We have had the COVID 19 pandemic. We have had people confronting the reality of climate heating and the emergency we are living in, where there are predictions from the United Nations that we will reach 1.5 degrees soon, within this decade, and we have been warned by scientists just yesterday that there are catastrophic existential changes to the climate that supports us.

These are weighty matters for young people. In the Youth Survey 2022 for Tasmania, we saw the changes and the impacts that the vast, rapid, enormous movements in society are having for young people and their concerns about their life now, whether they can get a house and especially about their future, whether they will be able to get a job, whether that will be sustainable and especially whether they will be able to live on a habitable planet.

We saw in Tasmania that 40 per cent of young people surveyed in the last four weeks self-reported as having low psychological distress, 27 per cent moderate psychological distress and 33.6 per cent high psychological distress. We are much higher than the national average in respect of our young people with high psychological distress in that period. As to the level of loneliness in the last four weeks, only 14 per cent of young people said they did not feel lonely any of the time, 25 per cent a little of the time, 33 per cent some of the time, 24 per cent most of the time and 5 per cent all of the time. This has an enormous impact on the sorts of services we need to be providing and how we provide them.

Emergency departments, according to the Mental Health Council, as we know from the hospital data, are witnessing more presentations from young people with mental health issues but they are not resourced in staff or expertise to provide the appropriate care. They note that this can cause more harm and be detrimental to the young person if they leave the service more distressed and then require more treatment, support and management in the community.

They also note that young people are presenting with more issue or population-based conditions such as eating disorders, LGBTIQ isolation and lack of inclusion, homelessness, trauma, drug use and the impacts of caring for parents or siblings. Young peoples' lives are changing. They are under more pressure and more complex issues are being exposed.

In that respect it is welcome to see some of the changes in this legislation. Before I go into that, I thank and commend the involvement of the stakeholders who have been involved in bringing these changes to bear. The review of the act which happened after six years was finally published in 2020. That was seven years after it was published, but here we are and it is another three years later coming to parliament.

There have been years of conversation and working about minute matters of law and weighing up the grave issues of how you make the right judgment about providing treatment to people when they may not be in a place of being able to give voluntary consent and how that looks and how we keep improving. It was the involvement of mental health families and friends, the Flourish mental health council and, of course, the Mental Health Council, the peak body itself, in the steering committee and the working group and the group that looked at forms and documents - not a small matter. I thank all of those groups and obviously people in all the departments involved and the Office of the Chief Psychiatrist and the people who provided the overview of the bill recently.

It is a fast-moving landscape and there has been a fast-moving mental health legislative and policy framework in Australia in the last decade. We have had the new national mental health plan. In Tasmania, the Tasmanian Law Reform Institute did some very important work on the review of the Guardianship and Administration Act in December 2018 that recommended a major overhaul of our state's laws and the removal of the need to establish that a person has a disability and also refocusing on whether a person can make decisions with the appropriate use of support. The TLRI also reviewed the defence of insanity in section 16 of the Criminal Code Act 1924 and fitness to plead. The TLRI looked at the shift from the current test for fitness to stand trial, which was contained in the Criminal Justice Mental Impairment Act, to focus on the accused's decision-making capacity as a means of determining whether he or she can effectively participate in the trial, rather than on his or her cognitive capacity.

We have also had at the United Nations level the Convention on the Rights of Persons with Disabilities that was ratified by Australia in 2008. Article 12 under that convention provides that people with disabilities have the same right to make their own decisions as everybody else and should be given the proper support they need to make those decisions. Other forms of decision-making, such as substitute decision-making, should be a last resort. All Australian jurisdictions, as a consequence of our federal government being a signatory, are required to adopt strategies to pursue those obligations for all people with disabilities, and the United Nations is very clear that that includes people with mental health impairments.

Another development that has happened and became legislation last year was the ratification in Australia in 2019, of the Optional Protocol to the United Nations Convention Against Torture, or OPCAT. That is a two-part system for inspecting places of detention in order to assure the prevention of cruel, inhumane and degrading treatment or punishment. Places of detention to be inspected include closed facilities or units where people may be involuntarily detained by law for mental health assessment or treatment, as well as closed forensic disability facilities or units where people may be involuntarily detained by law.

We signed that and created legislation to enable a national preventative mechanism, or NPM, in Tasmania last year and we have designated the Ombudsman as the NPM. Again, this is international law coming through Australian signatories to an international convention into Tasmania and being expressed here today to advance the rights of people with mental illnesses who, in this instance, may be detained involuntarily.

The principles for this Mental Health Act are a critical place to start for setting out the human rights framework and the way in which people will be treated. I want to make the point that the principles we have more clearly now demonstrate what the right to dignity and self-respect and liberty, autonomy and other inherent rights look like. For example, through the amendment to section 4, the meaning of 'mental health illness' in the Mental Health Act, we are now amending that from what it has said. Section 4(2) currently says that a person is not to be taken to have a mental illness by reason only of the person's current or past expression of, or failure, or refusal to express a particular sexual preference or orientation. This bill correctly updates and includes in the new definition 'gender identity or expression', so it will no longer be possible, under any circumstances or delusion, to consider it to be a mental illness if a person has expressed now or in the past, or failed or refused to express their particular gender identity or expression of gender identity.

We have to affirm this in legislation. We should not have to do that but, at lunchtime, I stepped outside the doors of Parliament House into a peaceful protest of people who are trans and their allies: LGBTI people who were rightly horrified at a group of fake feminists standing up and essentially denouncing their right to exist. They deny the right of trans people to exist. They deny the right of trans women to live in this world as women. They deny their inclusion in society and would essentially seek to have them removed, especially from public spaces. They want them to exist, if at all, in isolation outside of public spaces.

We have to affirm the right of everyone to exist, the right to gender identity, self-identity and gender expression. It is a critical part of our understanding about how human rights must operate in all societies, and especially in Australia. We are vulnerable. We do not have a statement of human rights in Tasmania and we should have. It is long overdue. It should be a right to have a home. It should be a right to be able to express your own identity, gender expression or express yourself how you will. It is your own life. We only get to live once.

Ms Archer - We do not need a human rights charter to do that though, do we?

Dr WOODRUFF - Well, I think we do.

Ms Archer - Really? I thought we lived in a free society.

Dr WOODRUFF - We do have great antidiscrimination legislation but we do not have a right to a home in Tasmania. If we did we might be able to use that right more effectively to garner the services that people ought to have.

We strongly support that amendment to the meaning of 'mental illness'. We also recognise and support the amendment to section 9 of the act, clause 47 of the bill, which is about the informed consent for children who lack the capacity to decide on their own assessment or treatment, with the change being that it allows for informed consent to be withdrawn at any time by the parent who gave the informed consent or, if the parent who gave the informed consent is not able to withdraw the consent or has ceased to be a parent of the child, another parent of the child. It is important that parents and carers have a full say over what is happening to their child, and that their treatment and experiences is not handed over to the state to make that decision without their involvement in the process. We strongly support that change.

We also endorse section 15 amended, which is about the mental health service delivery principles. The very significant change, the small but strong words, are in subsection (1):

All persons exercising responsibilities under this act, including but not limited to the performance of functions and the exercise of powers, must have regard to the mental health service delivery principles set out in Schedule 1 when exercising those responsibilities.

It has been 'that they are to have regard to those principles'. That is not as strong. so we support that change.

We recognise in proposed section 15A the statement of the rights of patients, which is:

(a) the right to receive the assessment, or treatment, under this Act in accordance with the mental health delivery principles;

(b) the right to have any restriction on, or interference with, the person's dignity, rights and freedoms to be limited as much as possible when taking into account the person's health and safety and the safety of others;

(c) the right to promote, and make prominent, the person's decision-making capacity, and to respect the person's wishes, to the maximum extent possible when taking into account the person's health and safety and the safety of others;

(d) the right to be given clear, accurate and timely information … [OK]

A person who is a forensic patient or involuntary patient is also to have the right to be detained in an appropriate manner while they are admitted, to be treated justly; essentially, to be treated as a human who needs care. The right to be given clear and timely information and the right to have access to current information about local, national and world events - that is such an important thing: that people should not be cut off from the world, so that they can find themselves in their surrounding environment and have a sense of society being near them and that that is something that they can participate in at some point. The right to ask for a leave of absence from the facility and the right to seek legal advice and have contact with and correspond privately with official visitors, patient representatives and support persons.

I want to go to the issue of official visitors and make some comments about rights and transparency.

In order to have rights, the point was made in the Government's response to the outcomes report, page 31, that the Government will develop and deliver education and training to clinicians on the mental health service delivery principles to support clinicians who are required to exercise responsibilities under the act to do so in a way that has regard to the principles. That is critical because there is quite a lot of feedback in the outcomes report that there was a lack of clarity among clinicians at times. There was certainly a perception from patients and consumers that there was a lack of clarity about principles. So, the issue of education and training guidelines and protocols from the Chief Psychiatrist and other appropriate parts of the THS on these changes and the changed responsibilities are really important. I would like the minister to talk about the next steps in terms of resourcing, if there is something in the upcoming Budget, or particular changes so that these can be rolled out. There are many different facilities in Tasmania that will need to abide by this act.

I also want to go back, minister, to your second reading speech when you spoke of the need to hold mental health services accountable to the highest possible standards, including the protection of people's rights. Correct. The question that needs to be asked constantly, though, is how is that done and with what transparency? What reports go to the minister and how can we, the parliament, know about the work of official visitors, for example? We need to understand and have complete transparency about whether and how the objects and principles of this act that guarantees people's rights are being met. They are intended to be reported under section 156 of the Mental Health Act, 'Functions of Principle Official Visitors'. The act requires that official visitors have the following functions:

(1)(g) to report on the extent to which the objects of this Act and the mental health service delivery principles are being met; [OK]

Can the minister tell me how our Principal Official Visitors reports are tabled? Where are they held? Why are they not provided to parliament on a semi-regular basis, like quarterly? Why do Principal Official Visitors not have access to the minister? This is what happens in South Australia. South Australia's Custodial Inspector Act enables Principal Official Visitors to have access to the minister.

I bring this up because of comments not long ago by former premier David Bartlett about his experience as minister for Ashley Detention Centre. He made some strong comments in relation to what has been going on, the abuse at Ashley, the failure to act on this and his government's part. He said the failure of transparency was being masqueraded as 'privacy concerns', was presented to him when minister as something that was 'a matter of privacy', and it could not be reported to him. He pushed and says he succeeded in requiring that uncomfortable information about reported incidents be shared with him, in a privileged sense, so that he could understand what was going on. But his view, in hindsight, was the issue was more about maintaining an existing culture that had normalised children at Ashley as incapable of learning and it perpetuated a status quo that effectively wrote off those children as undeserving of help.

We have had a culture of cover up across agencies that has led to systemic child abuse across the health, education and child protection sectors. That is the genesis of the commission of inquiry. We will all look very closely at that report. We hang a lot on that inquiry's findings and they will be very important for us to understand.

It is also why, in every instance, we have to be eternally vigilant with respect to public administration to ensure that it is open and that the protection of rights is demonstrated. In this instance, it is the rights of people with mental health illnesses, especially those who have had decisions made without their consent and who are restrained without their consent. Minister, would you be able to make a commitment to considering these issues, if not immediately, in the second tranche of the bill, so that we can understand better what Principal Official Visitors are reporting on?

The proposed amendments make good progress, especially regarding clinical governance and accreditation and that is really important, but I would like the minister to explain how we find out when facilities do not meet accreditation standards. That ought to be information that is available publicly, like it is for hospitals. We have had a situation where we have had hospitals in Tasmania which have failed to reach accreditation standards. The Launceston General Hospital failed a number of national accreditation standards, but ostensibly nothing really changed and it resulted in decades of child sexual abuse not being reported or being covered up, so we have had a serious example in Tasmania and we cannot sweep these institutions under the carpet. It cannot be too big to fail. We have to be able to look with clear eyes about facilities and how and when they need to change and there has to be full transparency.

I have made the general comments I wanted to make on the bill. I will make more comments as we go through the bill in the Committee stage. I thank everyone who has been involved in this process. I would like to hear a little more from the minister about the second tranche time frame. That would be very helpful, thank you.