Wednesday, 31 May 2023
Bills
Mental Health and Wellbeing Amendment Bill 2023
Bills
Mental Health and Wellbeing Amendment Bill 2023
Statement of compatibility
Mary-Anne THOMAS (Macedon – Leader of the House, Minister for Health, Minister for Health Infrastructure, Minister for Medical Research) (10:09): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Mental Health and Wellbeing Amendment Bill 2023.
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Mental Health and Wellbeing Amendment Bill 2023.
In my opinion, the Mental Health and Wellbeing Amendment Bill 2023, 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 Bill contains a number of definitional and consequential amendments that do not engage human rights protected by the Charter.
It also contains provisions to ensure that requirements to implement more significant reforms are in keeping with the operational, resourcing and training capacity of the workforce. Specifically, the provision related to mental health crises in the community will be amended to allow a more flexible approach for the gradual roll out of a health-led response. While this amendment will temporarily reduce the size of the health workforce available to exercise care and control powers in responding to a mental health crisis in the community, this will not detract from principles and fundamental responsibilities will still need to be observed by police, protective services officers and members of relevantly prescribed classes of persons in taking a person into care and control under the Act. In other words, upon commencement of the Mental Health and Wellbeing Act 2022 on 1 September 2023, members of the community experiencing mental health crisis will still be responded to in accordance with the mental health principles and the least restrictive way possible, and with primacy given to the expertise of health professionals to the extent reasonably practicable.
Additionally, clarification is being made to provisions around the review of use of intensive monitored supervision under the Act. Section 590 provides that as soon as practicable after an intensive monitored supervision order ends, the intensive monitored supervision clinical committee referred to in section 586 must conduct a review. The committee must ensure that particular persons are notified and invited to make submissions and provide information to the review. This Bill clarifies that it is not sufficient to notify and invite a mental health advocate, but that the mental health advocate notified and invited must be acting in accordance with any instructions given to the advocate by the relevant patient. This will increase the quality of participation in reviews, and promote patients’ autonomy and self-determination.
Relevantly for the purposes of this statement, the Bill amends the Judicial Proceedings Reports Act 1958 (JPR Act) to provide that sections 3 and 4(1)(A) of that Act, or a victim privacy order or interim victim privacy order under Part 3 of the JPR Act do not prevent the disclosure of information (including identifying information) by the Mental Health and Wellbeing Commission to the Health Complains Commissioner or the Australian Health Practitioner Regulation Agency. I consider that the right to privacy is relevant to this amendment.
Additionally, the Bill clarifies the existence of powers held by an Authorised psychiatrist to arrange for a forensic or security patient who is absent without leave to be transported to a designated mental health service. I consider that the right to equality, the right to freedom of movement and the right to liberty are relevant to these clauses.
Human Rights Issues
Human rights protected by the Charter that are relevant to the Bill
The Bill engages a number of rights which are protected and promoted by the Charter.
Right to recognition and equality before the law
Section 8 of the Charter provides that every person has the right to recognition as a person before the law, and every person has the right to enjoy their human rights without discrimination.
This right will be engaged because the powers in clause 23 and 25 of the Bill allow for an authorised psychiatrist to require that a security patient or a forensic patient who is absent without leave be taken into care and control and transported to a designated mental health service.
Arguably, expansion of the transport powers may amount to increased scope for direct discrimination on the basis of disability in that these provisions treat people with mental illness differently to other members of the community, on the basis of their mental illness. However, as the relevant provisions will apply to security patients and forensic patients who are absent without leave from a designated mental health service, the limitations on their freedom will necessarily be underpinned by operation of legislative provisions other than those contained in the Bill. Notably, security patients and forensic patients are subject to orders made by courts (such as a Court Secure Treatment Order under the Sentencing Act 1991 or a relevant order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997). Therefore, their treatment or confinement within a designated mental health service is outside the remit of this Bill or its principal Act. The powers to arrange transport that are contained in the Bill will enable those court orders to be given effect, but will not create additional limits on the right to equality. This right will therefore not be limited by the Bill.
Freedom of movement
The right to Freedom of Movement is found in section 12, and applies to a person’s movement into, out of and within Victoria. Relevantly, the right will be engaged when a person is required to move to or from a particular place. However, the right is intended to apply to restrictions that fall short of physical detention that would come within the right to liberty under section 21 (Kracke v Mental Health Review Board (2009) 29 VAR 1, [588]). While the powers to require the transport of security patients and forensic patients who are absent without leave may appear to engage the right to freedom of movement (in that they will limit people’s freedom to move around and require them to move to a particular place), the requirement to detain and transport is more likely to limit the right to liberty under section 21. This aspect of the limitation on rights will be considered in relation to section 21.
Right to liberty and security of persons
Relevantly, section 21 of the Charter provides that every person has the right to liberty and security, that a person must not be subjected to arbitrary arrest or detention, and that a person must not be deprived of their liberty except on grounds, and in accordance with procedures, established by law. This right is engaged because the powers in clause 23 and 25 of the Bill allow for an authorised psychiatrist to arrange for a security patient or a forensic patient who is absent without leave to be taken into care and control and transported to a designated mental health service. This may involve a form of detention, and will therefore involve an element of deprivation of liberty, which engages this right.
However, as discussed in relation to the right to equality, the relevant provisions will apply to security patients and forensic patients who are absent without leave from a designated mental health service. Any limitations on their freedom will necessarily be created by court orders (including under the Sentencing Act 1991 or the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997). The powers contained in the Bill will enable the enforcement of those orders, but will not create additional limits on freedom of movement. This right will therefore not be limited by the Bill.
Right to privacy
Section 13 of the Charter provides, relevantly, that a person has the right not to have their privacy unlawfully interfered with. However, the section contains internal qualifications that the right will only be limited if interferences are unlawful or arbitrary. An interference will be lawful if it is permitted by a law which is clear, precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought. This requires a broad and general assessment of whether any interference on a person’s privacy extends beyond what is reasonably necessary to achieve the lawful purpose being pursued (Thompson v Minogue [2021] VSCA 358, [55], [56]).
This right is relevant to the Bill due to the increased scope for publication of sensitive personal information created by the amendments to the Judicial Proceedings Reports Act. However, in my view this right is not limited by the Bill as any interference with privacy created by the amendments will be lawful and not arbitrary. The provisions that engage the right to privacy are clear, precise and appropriately circumscribed, and are reasonable and necessary to permit the Mental Health and Wellbeing Commission to perform its functions without risk of contravention of the JPR Act. The right to privacy is not limited by the Bill.
Are the relevant Charter rights actually limited by the Bill?
While several Charter rights are engaged, I consider that none are actually limited by the Bill.
Gabrielle Williams MP
Minister for Mental Health
Second reading
That this bill be now read a second time.
I ask that the second-reading speech be incorporated into Hansard.
Incorporated speech as follows:
When introducing the Mental Health and Wellbeing Bill 2022 last year, my predecessor acknowledged the challenging timeframe for new legislation that had been set by the Royal Commission into Victoria’s Mental Health Service System.
The Royal Commission had rightly seen it as imperative that new mental health legislation be passed in 2022 to establish the necessary system architecture to guide the 10-year mental health reform program.
As a government we agreed that no time could be wasted. We are proud to have delivered an ambitious new Act that establishes key entities such as the new Mental Health and Wellbeing Commission and Youth Mental Health and Wellbeing Victoria, as well as a framework – underpinned by right-based principles and objectives – for service system redesign and development.
I would like to take this opportunity to acknowledge the valuable contribution, commitment and engagement of many of our key sector partners in achieving that important milestone in our reform journey. It was wonderful to see members of the lived experience community, service providers and workforce representatives supporting the new legislation as an important first step, while continuing to remind government that there is much more to be done. I would also like to acknowledge the collaboration and support shown by members across both Houses which saw timely passage of this vital legislation.
As we have continued to progress reforms, and focus has shifted to the important task of implementing the legislation, it has become apparent that some amendments are required to ensure the Act operates as intended when it comes into effect. This reflects the pace at which the Act was developed, to meet the Royal Commission’s timeframes, and the fact that this work necessarily fell ahead of some key service design decisions.
The Bill we are considering today will amend the Act to address some identified issues.
Many of these amendments are minor or technical in nature, correcting errors or providing clarity. It is, nonetheless, important that these changes are made before commencement of the Act on 1 September 2023.
For example, due to the approach taken to structuring provisions in the course of drafting that relate to patients who are absent without leave from a designated mental health service, it is not clear that powers of apprehension and transport are available under the Act in the case of security and forensic patients who are absent without leave. These are powers that exist under the current Mental Health Act. Clarity that these powers will continue to be available when the new Act commences is important to protect the safety of these patients and the broader community. The amendments contained in the Bill will put this beyond doubt.
Other amendments within the Bill are necessary to respond to changing circumstances in the evolving service system since the Act’s passage.
For instance, I am very proud to say that the first six Mental Health and Wellbeing Locals opened late last year, and that the call for submissions for providers to deliver the next round of seven new Local services closed recently. One of the flagship reforms of the Royal Commission that will see services open in up to 60 locations across Victoria, Locals provide access to mental health and wellbeing treatment and care close to home. To support the aim of providing integrated treatment, care and support, the service model allows for consortium, partnership or sub-contracting arrangements between multiple service providers. The amendments in the Bill will provide clarity that organisations that receive funding through these types of arrangements will be mental health and wellbeing service providers under the Act and so subject to the same statutory oversight mechanisms and obligations as all other providers.
I am also very proud that the inaugural Board of the Victorian Collaborative Centre for Mental Health and Wellbeing commenced in September last year. The Centre, which was a recommendation of the Royal Commission, will bring together lived experience leadership, innovative service delivery and cutting-edge mental health research to drive system transformation and improve outcomes across Victoria. Since the Board commenced, work has progressed to further develop the service model for the Centre and to recruit to key positions within the organisation. This has led to a recognition of some necessary amendments to ensure the Act reflects the work of the Centre and to remove overly restrictive requirements that make it difficult to identify appropriately skilled and qualified individuals for appointment to key leadership roles within the organisation.
The Bill will also make amendments in recognition that statutory obligations must not come into force before the system’s readiness to meet them.
The Act establishes a framework to move from a law enforcement approach to mental health crises in the community to a health led response. This is an important reform to which Government is deeply committed. However, as we know, rising demands and the ongoing impact of the pandemic have put great pressure on the health system and, in particular, on our ambulance services. It would be irresponsible to proceed with introducing new crisis response powers for paramedics without first being sure that the necessary service supports are in place for the safety of our health care workers and the community. Amendments in the Bill provide the flexibility required to match system readiness to the new health led response by allowing registered paramedics and other health professionals to be prescribed by regulation to exercise these crisis response powers. This will be at a time when they are appropriately supported by the necessary system reforms.
Similarly, the Bill will delay the latest date for commencement of statutory Regional Boards by one year. This change will ensure that the interim regional bodies, that have been fully established since February this year, have time to build trusted relationships with community and stakeholders within their regions and establish strong community participation processes. This is an important first step on the path to regional service commissioning and will mean that when the interim regional bodies ultimately transition to Statutory Regional Boards they are well placed to fulfil their legislated responsibilities – including the provision of informed advice to government on service planning, funding and monitoring.
Before closing I would also like to provide the House with a brief update on activities underway to support transition to the new Mental Health and Wellbeing Act. As many members pointed out during debate on the Bill last year, many of the failings of the 2014 Mental Health Act stemmed not from the legislation itself, but from failures to effectively implement its reforms.
We have learned from this and so have invested $47.8 million in this year’s budget to support the establishment and readiness of entities with important oversight roles under the Act, as well as preparing the sector and community for the Act’s commencement. This funding is in addition to the $29.3 million allocated through the 2022–23 budget to support the Act’s implementation.
To date this funding has enabled the appointment of local Act Implementation Leads across all area mental health services, supported by a centrally led community of practice.
My department is establishing resources to ensure that all Victorians can find the information they need about the Act.
These resources are also supporting the development and roll out of a suite of training modules to ensure the workforce understands and can fulfill obligations under the Act from 1 September 2023; and the development of resources to ensure consumers, carers, families and supporters are supported to understand the new legislation and are aware of, and able to, exercise their rights.
The further funding recently announced will support the entities established by the Act to carry out their important statutory functions when the Act commences.
I am also grateful for the work of many of our sector partners who are developing resources, materials and skills to be able to inform members of the community about the reforms, including: Victoria Legal Aid, Mental Health Victoria, the Victorian Aboriginal Legal Service, the Mental Health Legal Centre, and the peak consumer and carer bodies – Tandem and the Victorian Mental Illness Awareness Council.
I am looking forward to once again working in a strong bi-partnership spirit to ensure that the best possible statutory framework is in place to support the reforms called for by the Royal Commission and to achieve the best possible outcomes for the Victorian community.
I commend the Bill to the house.
James NEWBURY (Brighton) (10:09): I move:
That the debate be adjourned.
Motion agreed to and debate adjourned.
Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 14 June.