Legislative Council, Wednesday 29 March 2023

Ms FORREST (Murchison) - Mr President, before I make my contribution I had prepared ahead of the debate to some degree, I thank and acknowledge those who briefed us today. They provided a very thorough and very helpful briefing, going through the various provisions and how they are applied in the bill that is before us. I said at the briefing that the summary that was read and explained the whole process would be very helpful to have it included in Hansard as part of the debate because it gives really clear guidelines and information about how each provision is set to impact. I am not sure whether that is even possible but the Deputy Leader might have to check with her staff whether that can be included as part of the debate in that it gives really clear stepped-out instructions.

As the member for Windermere could attest as leading the briefing, just so we get it on the record when he goes for his pay rise.

Mr Gaffney - An excellent job.

Ms FORREST - It was one of the best briefings I have been to in clarifying some really complex provisions in a really complex and extremely important piece of legislation. This legislation enables health professionals and others to deprive people of their rights and liberties. It is really important that we understand it, that it is applied correctly and with all due respect to the person's rights and their humanity in doing so.

The people who become subject to this legislation are some of the most vulnerable people in our community. They are already suffering from significant and serious mental health issues. It is really important that this legislative framework that supports the care and treatment of people who find themselves subject to this legislation and those who love and care for them - their families, friends, carers and others - have a really clear understanding of what is okay and what is not. What support there is, how they can access information, how any concerns that they have can be raised and what will be done about it and having really clear time frames about how long a certain.

Ms FORREST (Murchison) - Mr President, before the break in proceedings, I was talking about the importance of clarity for families and friends and the person themselves that might be subject to the Mental Health Act on how the length of time that certain measures can be taken to provide care and support and treatment to a person under this act. I will touch on that more in a moment, but I will speak more substantially to the bill.

The Mental Health Act is, as I have said, a very important piece of legislation. One we must be sure is contemporary and only permits the limitations of persons rights and freedoms in the most serious situations, with a minimalist approach to ensure the persons rights are not unduly overridden.

I know from undertaking committee inquiries in the past into this important legislation, things change. What might have been considered appropriate once is certainly not the case now. We also have many more advanced and effective treatments available for people with serious mental health illnesses. We must always try to ensure people are provided with as much freedom and autonomy with regards their health and wellbeing as possible.

I know that the development of the bill has actively included many stakeholders and importantly, people with lived experience. This is not just people with lived experience of serious mental health illness, but also their families, carers and other people who are significant to them. This is extremely important as we know how powerful and important it is to hear from those with lived experiences and to truly try and understand what it can be like.

The consultation has included both consumers and carers through not only the consultation process, but also their participation in the Project Steering Committee Legislative Working Group and the Forms and Documentation Working Group.

As noted in the Deputy Leader's comments, feedback was universal in the need for act to be simplified. In its current form, it is too difficult to understand and no doubt too difficult to interpret at times. I remember when we brought that particular piece of legislation in and it was after a fairly significant reform a number of years earlier. At the time you think you are doing the best job you can, but there are always things going to pop up that perhaps do not work as intended, and this bill seeks to address some of those matters, as well as to contemporize it more than what it currently is.

As I mentioned from previous committee inquiries into this type of legislation and related matters, how important it is to understand and appreciate the impact on carers, as well as consumers of mental health services in considering legislative change. I know following the review of this act in 2009 - it seems almost like a century ago now - a much greater focus on principles and rights-based legislation was proposed.

The committee recommended the principles enshrined in the Bamford Review of Mental Health and Learning Disability, Northern Ireland, to be the focus of our mental health related legislation. I note this is a very dated report now, but it is still relevant in many respects. To quote from the review and this is included in the appendix in the 2009 Select Committee Report, the committee recommended the same principles be adopted in quoting part of this report:

The principles underpinning new legislation should support the dignity of the person and have regard to Autonomy respecting the persons capacity to decide and act on his own and his right not to be subject to restraint by others.

There should be an assumption of capacity and provision of care and treatment should be on a partnership and consensual basis's as far as possible.

We speak for capacious decisions, should extend to those decisions made legally in advance and where the person grants specific decision-making powers to another on his behalf for the time where he loses capacity himself.

Participation - users of services should be fully involved to the extent permitted by the person's capacity in all aspects of their care, support or treatment. Users of services should be provided with all the information and support necessary to enable them to participate. This may include the involvement of advocates and or carers. Account should be taken of past and present wishes, insofar as these may be ascertained.

Justice - applying the law fairly and equally. Non-discrimination - persons with a mental health disorder or a learning disability should retain the same rights and entitlements as other members of society. Equality and respect for diversity, persons should receive treatment, care and support in a way that accords respect for, and is sensitive to, their individual abilities, qualities and cultural backgrounds. The legislation should not discriminate on grounds of age, gender, sexual orientation, ethnic group, disability, social class, culture or religion.

Reciprocity - the loss of a person's rights by detention or by compulsion to treatment and care should be matched by an obligation to provide adequate treatment and care for that person.

Partnership - services should develop effective partnerships to ensure continuity of care across age and service boundaries.

Fairness and transparency - there should be fairness and transparency in decision-making, and the right to representation. For the challenge of due process, proceedings should be timely. The specific rights of children, including the right to education should be protected.

Benefit - promoting health, welfare and the safety of the person while having regard to the safety of others. Where interference is necessary and permissible, the best interests of the person should be protected and promoted, including protection from abuse and exploitation. Intervention should only be considered using the legislation to achieve benefits which cannot be achieved otherwise. Benefit to the person should include, but not be limited to, reduction of harm to self or others.

Least harm - acting in a way that minimises the likelihood of harm to the person. The person should be provided with the necessary care, treatment and support in the least invasive manner, and the least restrictive environment, compatible with the delivery of safe and effective care. The perception of the restriction by the person himself should not be taken into account. There should be clear guidance on the use of restrictive practices, such as restraint, seclusion and time out for both adults and children. These should be monitored and subject to evaluative research. There should be clear guidance on how and when research may be carried out with persons who have impaired decision-making capacity, and this should be monitored.

These principles should apply in a non-discriminatory and balanced way to all healthcare decisions, as well as to welfare and financial needs. Grounds for interfering in a person's autonomy should be based on his or her impaired decision-making capacity. Persons who are subject to the criminal justice system should have access to assessment, treatment and care, which is equivalent to that available to all other people.

Legislation must provide appropriate public and individual protection to the community against harm from persons whose decision-making capacity is impaired, or who present a risk to others. On the other hand, legislation must not discriminate unjustifiably against persons who suffer from a mental health problem, or a learning disability. [TBC]

That is a long quote, but that is the framework under which the Bamford review or report actually stated where we should or be heading. That is what guided work back in 2008, the work, I think, was undertaken from 2002 to 2008, and the report was tabled in 2009. Whilst it was many years ago, most of these principles still remain very relevant and we find them actually enshrined in our legislation. The challenge of getting these doors right does require commitment and ongoing review, and appropriate resourcing.

I note and commend the Government on the ongoing progression in line with these principles, some of which have progressed through this bill, and I understand there is more work to be done. There will be a second tranche of legislative change next year. Things do move slowly sometimes, but at least they do move.

A more recent report out of Northern Ireland, the review of the mental health policies in Northern Ireland, Making Parity a Reality in 2019, reported in the assessment of the review a lack of progress - this was in Northern Ireland not here I am talking about - a lack of progress, particularly with intergenerational negative impacts on their people as a result of the troubles and associated trauma.

I was always fascinated by The Troubles being called 'The Troubles'. It was such a distressing time for those people, but in their understated way that is what they called it.

The review that was done in 2019, as I have just mentioned, noted the following:

The World Health Organisation provides three main goals for the organisation of mental health services:

• to de-institutionalise mental health care;
• to integrate mental health care into general health care; and
• to develop community mental health services.

These goals are integral to the recommendations resulting from the Bamford Review of Mental Health and Learning Disability. The issue for NI [Northern Ireland] Mental Health Care is not a lack of knowledge or awareness of what is required, rather it is a lack of commitment to prioritise, adequately resource and implement recommendations that have already been made.

The review concluded, in part :

The Bamford Review continues to inform policy on mental health in Northern Ireland, despite having begun in 2002 and being completed in 2008. Despite a plethora of evidence based research being cited and strategies for health care in NI, there is still no overarching mental health strategy there.

The challenges around mental health require radical action where stakeholders, including politicians, health care leaders, clinicians, academics, the voluntary sector and service users work together to develop and deliver an agreed vision for the future. It would be naïve to pretend that resourcing the health care sector is easy, however, evidence shows that not doing so or not doing so adequately is a false economy.

Mr President, I am pleased to say that Tasmania has made significant changes. As the Deputy Leader mentioned in her contribution, with some of the change we are making here we will have the most rigid and most respectful of the person's time limits in this country. I commend the Government for taking this seriously and bringing this bill forward.

It is pleasing to see we have had a much greater focus on progressing legislative reform in this area. However, there has been a battle to have adequate resourcing, especially in our rural and regional areas and particularly for young people, and has been inadequate across mental health generally.

The bill proposes that the principles and rights, part of our existing legislation, are updated to ensure they remain contemporary, easy to interpret and apply in a mental health service setting. This includes the inclusion of a new chapter in the bill titled 'Rights and Policies', which according to the Deputy Leader, gives prominence to the newly harmonised and updated rights and service delivery principles for forensic and civil mental health patients. This is a positive and important step that needs to be clearly demonstrated in actions. It is all well and good to enshrine some of these rights and principles in our legislation, but we do need to live them as well.

I note the Government is committed to the implementation of all 29 review outcome recommendations developed from broad stakeholder input, and this is the first of the two stages of legislative change. This bill requires all medical practitioners, nurses, police officers, and other persons exercising responsibilities under the Mental Health Act, must have regard to the service delivery principles which are described in Schedule 1 of this bill. It becomes a mandatory requirement rather than an instructive requirement. These service delivery principles, as listed in Schedule 1 of the act, have been updated to ensure they are clearer and inclusive of relevant and contemporary concepts.

The Deputy Leader outlined the strong support from stakeholders regarding the inclusion of rights related to personal factors such as gender identity and distinct cultural identity needs; the strengthening of patients' rights under the act; and updates to clarify that a mental illness is not - on its own - a current or past expression of, or failure or refusal to express, a particular sexual preference or orientation or gender identity and expression. This will make an enormous difference for some people who have had issues with this area. We are doing a lot of work in this place. I do look forward to the banning of conversion therapy, which notionally assumes a person can be fixed by counselling and the like, and I agree this is an appropriate inclusion.

Other welcome additions to service delivery principles, include the improved focus on robust clinical governance and quality and safety processes, and ensuring that staff working in mental health services have access to support, supervision and appropriate training. In the briefing, we talked about the training that would be required to ensure all visitors [TBC] for example too, are required to have the appropriate training, including training to enable them to act as official visitors for children and the importance of that trauma informed approach. We were told in the briefing there is no such specific training for that. It would be managed perhaps through developing our own program. Clearly, it does show that has been overlooked in the past to a degree. This training also includes cultural diversity training and will require staff working in mental health service to maintain quality, safety and be highly skilled and an appropriately accredited workforce.

The bill also promotes the ability of persons with mental illness to make their own decisions, including decisions about that person's assessment, treatment and recovery that involve a degree of risk. We have in the past taken this more punitive approach as we know what is best for you, a person has right in all areas of health to make decisions we may think that we would not make. It comes back to that whole right to refuse treatment and situations like that and an important inclusion.

Supporting and maintaining a person's autonomy and dignity is crucial at times when their mental health is impacted and impaired. The acknowledgement of allowing a mental health patient to accept risk is another improvement in the bill that decision is supported on medical terms and do not patronise or condescend patients. The replacement of the term 'protective custody - the temporary detainment for the purpose of assessment - is also welcome for these reasons. In the briefing we were informed about workshopping of what word would be most appropriate and that was done through various consumer groups and those with lived experience. It needs to be clear as to what we are talking about but it should also not send inappropriate messages.

The promotion of rights and wellbeing and safety of children, including of receipients of mental health services and as children of persons receiving mental health services does require specific principles in my mind. This is mostly dealt with through the bill. Broadening the definition of parents is appropriate to ensure all children who may interact with a mental health system have someone who can make decisions on their behalf when needed and necessary. The definition in clauses 43 and 47 are intended to clarify matters related to the withdrawl of consent on behalf of children and young people under the act. We asked for further clarity around this provision in the briefing, which was helpful. Currently, as I understand it, and I am sure the Deputy Leader will correct me if I get this wrong, each parent of a child who originally consented to the treatment, is currently required to consent to withdrawl of the treatment.

That has been problematic where one of those parents, or the parent who gave the consent is no longer contactable or who no longer has capacity. This change was intended to provide for situations where parents have joint custody of a child. Currently, that is the case as well. If they differ in the opinion of a child's treatment this could lead potentially to interrupted and ineffective treatment for the child, or a lack of continuity. I thank the Deputy Leader's staff who were informing us in the briefing about how that would work in practise, because it is a very difficult area. We have estranged parents, and parents being the much broader definition now, where they may not hold the same view about a particular form of treatment of a child and it can be a very difficult area to navigate for those working with this at times. If we can make it as clear and practical as possible to enable that a child to be able to receive appropriate treatment. It will never be an easy area, no matter what you do.

I also note the statement regarding children receiving services and how these services could be received separately from adults wherever possible, was the statement that was made, and I did ask for further detail about this in the briefing. It did raise a concern for me and a question in my mind are the people I spoke to about this bill, in particular with reference to 'wherever possible.

I did ask in the briefing for more information about when this may be necessary and how this will be managed in situations where you have a child and the only safe and appropriate place for them to be is in a facility where there are adults. We were informed that a child will always be with someone else. We need this clarified on the record, Deputy Leader. There may be a physical separation like in a room or place where other adults cannot access, but this may end up being a room with a door locked, which then becomes seclusion. How is that managed for the child? There are different requirements on seclusion and I expect this would be a last resort thing. That is what we were informed in the briefing. There could be times, particularly, where you have limited access to facilities where the most appropriate safe place is in a facility where other adults are, also with mental health conditions and challenges. We need to be sure these children are not unduly impacted. How do we manage that when the only available option is in a facility with other adults? If they do require a physical separation to do that, that may leave them in a room with a locked door that they cannot get out, which becomes seclusion.

The protection of and support for children engaging with Mental Health Services should also be enhanced through the proposed changes to the strengthening of the role of the Official Visitor Program and strengthening the rights of children and young people to be assessed and treated under the act.

The Deputy Leader made the point and we discussed this more in the briefing, a child can make a complaint to an official visitor, regardless whether they have the consent of a parent or guardian to make the complaint. A child can make a complaint, which is really important and be believed. The functions of an official visitor include checking that the additional requirements under the act in relation to the Mental Health Services provided to a child are complied with by the providers. That came back to that requirement all official visitors are trained to work with children and other vulnerable people.

The provisions to streamline and support the oversight functions provided by the independent official visitors, including better access to records, an ability to raise matters of particular concern directly with the controlling authority in an approved facility, as well as the current options to the minister and the Chief Psychiatrist who are important and necessary to promote timely action when required. Particularly, in the care where they are minor things that can be changed quickly within the facility. It makes sense to do that. Things can be addressed promptly, things that have been identified by the official visitors and it makes sense to do that as quickly and efficiently as you can.

It is also vital provision to relate seclusion, restraint and urgent circumstances treatment are only applied as a last resort. Applied safely for the person and promote recovery in the least restrictive manner, they are consistent with the needs of a person with mental illness.

The changes here in the bill should ensure patients are less likely to be secluded and less likely to be restrained and certainly not to be secluded or restrained by any time longer than necessary.

I do recall debate on this matter during a previous consideration over the Mental Health Related legislation, as our current provisions for seclusion and restraint require a chief psychiatrist approval of the treatment every seven hours and examination of the approved medical practitioner every 12 hours. We discussed this in the briefing as to what that actually involves. An examination by a medical practitioner to be a physical examination where it is eyes on, hands on, to fully assess the person. It is not just having a look through a window at a person.

The Deputy Leader informs us that whilst the current legislation provides for four hours of seclusion and restraint, she also states vitally important to note, that most uses of seclusion and restraint in Tasmania are less than three hours. I wonder whether the Deputy Leader might have any information about those time frames? It may not be available, but to make that claim when the provision allows for a much longer period of time, I wonder if there is a summary of the actual time frames. Obviously, an average is an average. Some would be longer and some would be shorter but it is interesting to think if the average is less than three hours, there must be some fairly short periods of seclusion and restraint, and that is good.

In addition, the bill includes prescriptive measures around the matters of seclusion and restraint and, as I said, these should only be used as a last resort. With regard to the medical and chemical restraint and the descriptions and requirements and protocols around this, this has been raised with me by some other stakeholders. The provisions appear sound, but the other form of restraint - by being put in a room on their own, like a padded cell type arrangement - is not so clear to them; and these are people who work in this space, not necessarily in that particular area but in mental health generally. It is presumed that the restraint in this case is non chemical. It could be a padded cell for six hours; or is this something more restrictive? I am trying to understand what we are referring to here. I am seeking clarity on this as my memory suggests other forms of physical restraint, like physically binding someone, were banned. I want to understand where we are at with non chemical restraint rather than physical restraint.

With regard to these provisions around chemical restraint and observation checks at least every 15 minutes when someone is chemically restrained - during the briefing, I asked for clarity about the nature of those 15-minute checks. Is it just eyes through the window for the person to see that they are still there and still breathing, or is it more than that? We were informed in the briefing that it is a risk assessment as to whether you need to physically assist the person or assess them more closely; particularly if they had very shallow respirations, for example. A person who may be in this situation may have well been admitted with issues related to drug and alcohol abuse. They may be chemically restrained. Their risk of a respiratory arrest or some sort of respiratory distress is quite high. The risk of them vomiting is also significant, as well as perhaps losing control of other bodily functions. The important thing is what is this at least 15-minute check?

Subsequently in the briefing we were informed that people who have been chemically restrained require constant observation. I again assume that means 'eyes on', but not necessarily a physical assessment. If we could clarify those matters.

The provisions regarding official visitors suggest they may intervene at any stage, but are there rights to the individual when they are secluded or restrained? I asked this in the briefing and the response was that there is no legal barrier to an official visitor meeting with or seeing someone who is in seclusion or is being restrained, but it will be done on a risk assessment basis. You do not want to put the official visitor at risk, either. Could you clarify that they can access a person who is under seclusion or under a restraint order.

It is positive that the proposed amendments allow for the three hour maximum authorisation of seclusion and restraint, with only extension of a further three hours able to be authorised. That reduces the total authorisation time to six hours and this is, as the Deputy Leader said, the only jurisdiction with the maximum period of seclusion or restraint at that low number of hours. I understood from the briefing, however, that a new order can be applied. A person could end up being in seclusion or restraint for more than six hours but you would have to start the process again, as I understand it. That would be a last resort if the person is cannot be managed outside of those settings.

The eminently sensible decision to combine the statutory roles of the chief civil and chief forensic psychiatrist does not need any further comment. I am not sure why that was ever done. It is another thing that I can't understand why we did it that way.

One of the other streamlining effects of the bill is the provision for intrastate transfer to an alternative approved hospital. It is particularly important for patients that have been admitted in a region where they do not normally live and they are not close to support of their families or other networks. This is assuming there is a suitable facility to take them; but this should definitely enhance patient outcomes in many cases, and patient recovery, which surely is what we are all about.

We talked about this in the briefing, but I just thought 'how did we ever decide that this was the right thing to do'. This is the provision relating to situations where a forensic inpatient, whose order or sentence is about to expire but is assessed as needing to remain in the secure mental health unit due to serious ongoing healthcare and treatment needs - which is entirely appropriate if that is the best place for their care to be delivered - currently needs to be transported to another approved hospital for assessment.

I asked in the briefing, how did we possibly agree to that in the original bill? I was pretty confident that the Wilfred Lopes Centre for example, which is our Secure Mental Health Unit, would have staff able to do this assessment, because they are providing care for that person there. It was a bit of an anomaly, in that it was an unnecessary and in some respects, quite inappropriate step, because it required the person being moved to another facility; being assessed; and then being taken back again; and all the stress and anxiety that goes with that. That is someone who is obviously very unwell, otherwise they would not be in the centre in the first place; so that is incredibly sensible. But when you are bringing in very complex legislation, some of these sort of things and the application of them can be overlooked.

Quality of care is very important in mental health care and anything we do to promote that is for the better. Amending the time frame for the Tribunal to review an admission to a secure mental health unit from three days to seven is also appropriate, and it reflects the principle-based approach this legislation seeks to enshrine.

Mr President, these amendments are important, and reflect one part of a two part process to adopt and implement all 29 recommendations of the Mental Health Act Review Outcomes Report. I welcome the harmonisation the principles and rights for patients engaging with our mental health services who find themselves subject to any provisions of this Act.

They are some of our most vulnerable people and even people who are terribly unwell still have rights. We need to respect those, particularly when we are seeking to remove some of their rights and liberties. I look forward to ongoing implementation of the remaining recommendations, as the Tasmanians who are subject to this law are often the most vulnerable and the impact on them and their loved ones can be most profound.

I thank those who briefed us today - it has been really helpful - and I look forward to the Deputy Leader's response to a couple of those points.

 

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