Mental Health Treatment Reforms

Mr NINOS KHOSHABA: My question is addressed to the Minister Assisting the Minister for Health (Mental Health). What action is the Iemma Government taking to implement the findings of the 2007 James report on mental health forensic patients legislation?

Mr PAUL LYNCH: I thank the member for Smithfield for his question and for his longstanding interest in this important topic. I am pleased to advise the member and the House that the Government will implement the recommendations of the James review of New South Wales mental health forensic patients legislation. This represents a significant and substantial change to the way in which we deal with forensic patients. It will mark the final phase of the review process of the Mental Health Act—a process that commenced in 2004. That review already has resulted in a new Mental Health Act, which commenced in November last year.

Reconsideration and reshaping of the law applying to persons with a mental illness who have been subject to criminal proceedings is a pivotal area of reform. In 2007 the Government initiated a special review of those laws, which was chaired by the person who was then, and continues to be, the President of the Mental Health Review Tribunal, the Hon. Greg James, QC. The review was conducted over a 12-month period and involved extensive consultation with community and victims groups, health professionals and agencies directly related to or involved in service provision in this area. The final report of the review was released in April this year.

The changes mark a major overhaul of the law in the mental health field. The changes are important because they will make the system for oversight and review of the release of forensic patients more accountable, more transparent and, for the first time in New South Wales, they will provide, in forensics laws, recognition of victims. The changes also are important in that removal of executive discretion will bring New South Wales into line with most other States in Australia and with similar jurisdictions, such as England and Canada, which moved to a judicial-based system some considerable time ago.

The changes will replace the current cumbersome and lengthy processes of controlling patients by executive discretion—a system that originated in eighteenth century laws, although one could suggest they are almost mediaeval in their conception—with a process that is based on objective, judicial determinations through the Mental Health Review Tribunal. Under the changes specialist panels of the Mental Health Review Tribunal will be established to oversee the care, control and release of forensic patients and to make decisions on those issues. For the first time interested parties will have direct access to decision makers.

The specialist forensics panels will be chaired by sitting or former judges. That will ensure a robust and detailed review is undertaken of the issues that are relevant to the release of forensic patients. The panels also will be given clear statutory direction on issues that must be considered when determining the orders that should be made, including release orders. The statutory criteria will include matters such as whether the person is mentally ill, whether care, treatment or control is necessary to protect the person and others from serious harm, the possibility of the person's condition deteriorating at the time and the likely impact should that occur and, most importantly when release is proposed, the panel will also be required to consider independent safety reports from a psychiatrist who is not involved in the care of the person. The panel will be required to carefully consider these matters.

In addition the panel will be able to release a forensic patient only if the tribunal is satisfied that the safety of the patient and any member of the public will not be seriously endangered by that release. Under the new system the Government also will retain a capacity to make its own submissions to the tribunal if there are particular concerns about issues of public safety. The new system will be further strengthened by a comprehensive appeals process whereby both the Minister for Health and the Attorney General will have a right of appeal to the Supreme Court.

Victims were widely consulted during the James review. The changes will reflect the recommendations made in James's final report in relation to victims issues. One of the critical changes will be to provide, for the first time under mental health legislation in this State, a clear statutory recognition of the role and rights of victims. The changes provide for establishing through regulations a victims register which in turn will provide a basis for victims to be notified of a prospective release. That in turn will further enhance the current processes recently put in place by the Mental Health Review Tribunal that will allow victims to make submissions to the tribunal on release issues. The tribunal will also have the capacity to make non-association orders and place restriction orders, by which a forensic patient can be directed not to associate with victims or their families or can be directed not to visit certain places or locations. Breach of such orders may lead to a person being re-detained.

These non-association orders and place restriction orders may also be imposed on a forensic patient following an application by a victim. The legislation will also provide victims with specific rights to seek a variation of association and non-association orders if they have fears for their safety, as well as the right to be a party to appeals where such orders are challenged. Organisations representing victims have expressed their support for the James recommendations, especially the removal of executive discretion. In particular, Ken Marslew from Enough is Enough and Howard Brown from the Victims of Crime Assistance League have expressed their support. In correspondence to me, Howard Brown said:

I am of the view, as is my associate Mr Marslew AM, that the decision of the Tribunal should be the deciding authority as to the status of a patient The Tribunal has far greater knowledge of the patient and the needs thereof and the involvement of the executive often merely delays proper and timely treatment, which can have a substantial negative effect on the entire matter.

It is important to emphasise that the Government has given careful consideration to the James review. It should be said, however, that there are some recommendations that the Government will not pursue. In particular, the Government has determined that it will retain the current provisions to ensure that police continue to be notified of the release of forensic patients. Other significant changes that will be adopted by the new legislation include, as foreshadowed by the review report, establishing structures to allow community treatment orders to be adapted and provided in a correctional setting. This will be an important piece of legislation that will make great improvements to the current system of review and release of forensic patients.

It is worth noting that this decision has been made in the context of record expenditure on the mental health budget. Last year was the first year in which we were able to exceed the $1 billion limit in the provision of mental health services in this State. The most recent State budget increased that amount so that once again in excess of $1 billion will be spent on mental health services in New South Wales. This budget marks the third year of the Government's five-year plan to enhance mental health services. The budget delivers an additional $41 million on last year's budget. It includes features such as $6.85 million over two years to expand 24-hour community mental health emergency care through the recruitment of additional mental health professionals at more than 20 locations across the State; $3.1 million to recruit an additional 16 clinicians to expand the Mental Health Community Rehabilitation Program; $2.1 million to enhance specialist mental health services for older people, including the recruitment of additional specialist staff such as old-age psychiatrists, psycho-geriatric nurses and allied health professionals; $9.4 million in additional funding to open new mental health facilities, including the Concord Child and Adolescent Mental Health Unit; and $300,000 for eating disorders to support inpatient treatment in both psychiatric and medical services and expand community-based care, including support for families of people with eating disorders. This builds on the work we are already delivering with specialist eating disorder inpatient beds and intensive day program places.

Mr Brad Hazzard: You're still spending the least amount of any State.

The SPEAKER: Order! I call the member for Wakehurst to order.

Mr PAUL LYNCH: In response to that predictably stupid interjection from the member for Wakehurst, I suggest that if he looks at the figures he will find that the New South Wales Government is well above the national average for the provision of mental health beds. That is a reflection of the record amount of money that we are spending in this area—more than $1 billion. The last time those opposite were in power they spent $350 million on mental health. We have tripled their expenditure. So, in that context, it seems quite preposterous to have that sort of interjection from the member for Wakehurst. The changes in provision for forensic patients have been discussed and argued for many decades. The system that we are changing was implemented in this land in 1788, and we are effectively getting around to changing it some 200 years later. The current system, which is now being changed, is based upon eighteenth century law and seventeenth century concepts.

Mr Adrian Piccoli: Point of order: While Opposition members appreciate the importance of mental health—

Mr Kerry Hickey: What's your point of order?

The SPEAKER: Order!

Mr Adrian Piccoli: I refer to Standing Order 129.

The SPEAKER: Order! I call the member for Cessnock to order.

Mr Adrian Piccoli: Mr Speaker, you have ruled previously about the length of answers. The question was of a general nature and the Minister has been responding to it for at least 10 minutes.

The SPEAKER: I ask the Minister to finalise his answer.

Mr PAUL LYNCH: In conclusion, the current system is based upon eighteenth century law. The changes mean that forensic patients in this State will have decisions affecting their welfare decided by twenty-first century law instead.