Bills debated

DECLARED PLACES (MENTALLY IMPAIRED ACCUSED) BILL 2013

 

HON LYNN MacLAREN (South Metropolitan) [2.31 pm]: I rise to contribute to the second reading debate on the Declared Places (Mentally Impaired Accused) Bill 2013 and to express the Greens support for this bill.

The second reading speech states that the bill’s purpose is to enable the Disability Services Commission to operate WA’s first declared place that will provide accommodation and support services for people with intellectual or cognitive disability who have been accused but not convicted of a crime. It will provide an alternative to custody in prison or a detention centre, where they have been placed to date. This is a bill on which the government has consulted with its stakeholders. Indeed, I believe consultation with my office goes back at least 18 months to two years. In that time it was clear that many organisations that are experts in this area have been consulted by the government. Stakeholders consider it to be a significant step forward, and it is their support for the bill that, of course, informs the Greens support. In fact, the bill is supported by the Western Australian Association for Mental Health and the Mental Health Law Centre (WA).

Other stakeholders who commented on the bill and also give their support are the Commissioner for Children and Young People, People with Disabilities (WA) and the Social Justice Unit of the Uniting Church in Australia, WA. People with a mental illness, if it is treatable, are supposed to be detained in an authorised hospital. They are not covered by this bill. There appears to be a gap in respect of people with a mental illness that authorised hospitals will not take; that is, because their illness is not treatable. Under clause 66, children under 16 years old also will not be able to be detained in a declared place. There are to be two secure declared places built, each one taking up to 10 residents; although in the briefing I received, it would appear that at this stage only five people are affected by this bill. It is really quite a small number of people we are talking about today. I suppose that number might grow in the future, but it is important to keep in perspective that we are talking about a small number of people who fit into this category.

The Western Australian Planning Commission has approved one declared place in Caversham, with building to commence in 2014 and the centre to be open in 2015. I recall, as a member of the Standing Committee on Environment and Public Affairs, several petitions regarding these places, and as a committee we became well aware of the issues that have been canvassed by members who spoke previously. This is not a simple thing to achieve, and any government setting out to achieve it is to be commended because it is important that this work be done. I do not have a solution for how it could be done better and I deeply respect other members speaking up for their constituents in their own struggle in how this has been implemented. However, some things are just difficult and they have to be done. It is envisaged that in the future the facilities may be operated under contract. Members have also mentioned that, and I intend to mention a bit more about that in the summary of my comments, as that raises concerns for the Greens, as it does for the rest of the opposition.

I want to canvass a few of the issues raised by the Mental Health Law Centre that do not appear to be addressed in the bill, as it may be appropriate to include these issues in a review of the bill in three years. I had a very informative and enlightening briefing from the officer with whom I raised these issues, and I raise them now in the second reading debate so that the minister has an opportunity to put on the record the government’s response to those issues. Some of them may be issues that the government needs to take up in the future and some may be issues that have already been addressed. However, it is very important that they be explicitly addressed in the reply to the second reading debate because, although the Mental Health Law Centre supports the bill, it does have some concerns. One of those concerns is the lack of review mechanisms and the lack of remedies for a breach of the bill’s provisions. Under the bill, the chief executive officer and others have considerable powers over residents, and ways in which the bill addresses this include requiring certain things to be done, for example mandatory notification of certain people or bodies and mandatory keeping of certain records. It also includes imposing limitations on when certain powers can be exercised against residents, for example, restrictions on their freedom of communication and physical restraint. I note that the officer provided me with specific examples of the time frames in which decisions such as restraint or restrictions on communication would be reviewed, and the procedures in which they decided to be implemented.

The Mental Health Law Centre is concerned that some clauses provide insufficient clarity about what can be done if actions that are mandated by the bill are not complied with. Examples are: notification not given as required; records of restraint of residents not kept as required; limitations imposed by the bill not complied with, for example, a person restrained or secluded in circumstances not permitted by the bill; and finally a decision made in accordance with all of the bill’s provisions but the resident would like to appeal that decision or have it reviewed, for example, a decision to restrict the resident’s freedom of communication.

 

Some provisions do specify penalties, for example, clause 16, which is ill-treatment of a resident; and clause 15, which is failure to report suspected ill-treatment, wilful neglect, unlawful sexual contact or unreasonable use of force on a resident. However other provisions appear silent on the consequences. An example of the apparently silent provisions is clause 10, which states that the CEO is allowed to restrict a resident’s right of communication with other people, but only in certain circumstances and not in relation to the resident’s advocate, enduring guardian, guardian or lawyer. This clause also requires records to be kept of such decisions, and various people must be notified. It is not clear to the Mental Health Law Centre what the resident can do if communication is restricted in circumstances not permitted by the bill, or if the required record keeping or notification does not happen, or simply if the resident disagrees with the CEO’s decision and would like to appeal it.

Another area of concern is part 8 of the bill, which provides for residents to be restrained or secluded. The bill provides that this may happen only in certain circumstances, and there are additional requirements with regard to record keeping, residents’ welfare, and review. However, the Mental Health Law Centre is concerned that the bill is not clear about what will happen if a person is restrained or secluded in circumstances not permitted by the bill, or if any of the other requirements of the bill are not complied with.

Another area of concern for the Mental Health Law Centre is the lack of controls over delegation. In the view of the Mental Health Law Centre, the delegation power at clause 20 of the bill is not sufficiently controlled. For example, the bill does not require a person to whom the chief executive officer delegates power to exercise those powers consistent with any practices or procedures published by the CEO. The Mental Health Law Centre stated in its submission on an earlier version of the bill that it believes the uncontrolled delegation power in the Mental Health Act to be the primary contributor to the variable standards of care and poor governance identified by Professor Stokes in his July 2012 report into mental health services.

Another area of concern for the Mental Health Law Centre is residents’ safety. The Mental Health Law Centre made a strong submission that the bill should mandate that closed circuit television surveillance be installed throughout declared places, with sound, but without screens or monitors displaying that surveillance live, with the records to be stored. It also advocates that there be key card access to bedrooms at night, with access and egress to be recorded. I raised these issues with the officers during the briefing, and I believe the minister has a response for this. The Mental Health Law Centre argues that it is justified to protect patients against criminal neglect, and physical and sexual abuse, pointing out that a recent Victorian report indicates that over 45 per cent of residents of Victorian psychiatric hospitals have been sexually assaulted.

I canvassed this issue during the briefing, as I have said, and I would like to have a response on the parliamentary record, because that may go some way towards describing the stark difference between what is being set up through this bill—that is, a declared place—and a psychiatric hospital. I understand that CCTV will be installed in declared places as a security measure, basically to protect access to the property. But these properties, as they have been described to me, will be nothing like a psychiatric hospital. They will be homes for people with a disability. I would therefore like the minister to clarify in her response the difference between a declared place and a psychiatric hospital. During the debate on the Mental Health Bill, I argued strongly for CCTV. However, we need to address what kind of monitoring is appropriate for declared places, giving due consideration to the privacy of the people who will be living in those places. Therefore, that is definitely a matter that we will be following up in the review in years to come.

The final issue I want to raise is sterilisation and long-term contraception. Clause 17 of the bill deals with who may make decisions on behalf of residents about medical treatment. The bill authorises the CEO to make such decisions if the resident needs treatment but cannot make reasonable judgements about it and there is no-one else who is legally permitted to make the decision and is willing and available to do so. The minister would be well aware that the Mental Health Law Centre is concerned that this could include sterilisation or long-term contraception, and that the bill does not require the CEO to take such decisions to the State Administrative Tribunal. This is also an issue that I believe should be addressed in the minister’s reply to the second reading.

There is another concern that I want to place on the parliamentary record today. The Uniting Church social justice unit commented in its submission on the lack of detail in the bill about the way in which the government may contract out declared place services and pointed to a recent report about the experience in the United Kingdom. That report, which I will forward to the minister, can be found on www.opendemocracy.net/ourkingdom and is titled “Parliamentary watchdog: too often private sector contractors’ ethical standards found wanting”.

It is of serious concern that the management and operation of declared places may be contracted out. The very real experience in the United Kingdom and the United States is that it has not worked out. Private sector contracting has been used in our own country by the federal government to remove scrutiny of detention centres for asylum seekers, because it all comes under commercial-in-confidence and therefore no-one gets the opportunity to examine it. As all of us who have been carefully watching this trend towards contracting out would know, this is very concerning. That is putting it extremely lightly. I guess in a perfect world, there would not be a clause in the bill that provides the ability to contract out these services. I believe government is accountable and it is the appropriate body that should be running these organisations. The bill provides that the CEO may enter into a contract for declared place services. However, the bill does not explicitly state what responsibilities that contracting organisation would be required to adhere to. In other words, the CEO could contract out certain things, such as accountability and transparency. That is a real concern that members on this side have raised. I do not understand why the ability for the CEO to contract out is even included in the bill, if the government has no intention at this stage of doing so. However, that is something that could be added down the track if a government had the will to do it. Therefore, I will be very interested to hear the minister’s reply, and I may even potentially oppose that clause for contracting out, because I believe it does not provide adequate safeguards to ensure that all the responsibilities contained in the bill will be passed onto a contracting authority. I appreciate that the Uniting Church has brought that matter to my attention.

In my final comments, I would urge the government to undertake to include in the review the following issues as raised with me by the Mental Health Law Centre. If we have a review in three years and I or other people are around to ask these questions, we need to hear about the robustness of procedures and consequences for failure to comply with the requirements of the act; we need to track the safety of residents and any need for further measures to protect residents, such as CCTV; we need to know whether delegated authority is being exercised appropriately; and we need to know whether there has been adequate review of any medical decisions that involve sterilisation or long-term contraception.

Minister, as I have made clear from the outset and throughout my speech, the Greens support this bill. We see it as a significant step forward and we look forward to its implementation in due course. I do not think there is a person in Western Australia who did not feel for Marlon Noble and his terrible circumstances and the terrible injustice that our system created for a person who was already vulnerable. This bill has been a long time coming, and we should see it enacted soon so that people like Marlon Noble will not need to suffer any longer. 

Authorised by Lynn MacLaren © 2018

Hon Lynn MacLaren MLC - Member for South Metropolitan Region (2009-2017)
Legislative Council, Parliament of Western Australia