Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Mental Health) Share this | Hansard source

I also rise to speak today on the Social Services Legislation Amendment Bill 2015.

As you would have heard, Mr Deputy President, this is a complex piece of legislation that has a number of elements that I encourage my colleagues, particularly my colleagues who sit on the crossbench, to examine closely. It is a piece of legislation that is easily conflated into who is right and who is wrong. Rather, we need to think about the implications of what this legislation may mean if it is passed through this chamber today.

The Social Services Legislation Amendment Bill seeks to amend the Social Services Act 1991, to cease social security payments to people who are being held in psychiatric confinement because they have been found not fit to stand trial because of their mental illness, or who are having their fitness to stand trial assessed or who have been found not guilty because of mental impairment. People in this group, as we have heard, are referred to as 'forensic patients'.

Since 1986, legislation has provided that a person undergoing psychiatric confinement and who is undertaking a course of rehabilitation can receive income support payments. They are people who have been found to be suffering very serious mental health concerns. The people impacted by this measure will have been charged with very serious offences—very serious offences. That is why any change to arrangements for people in psychiatric confinement needs to be considered properly and any implications of these decisions assessed truly.

Wherever possible, forensic patients generally undergo a program of rehabilitation—by and large, most do—before they are released from custody. Not only does this help to reduce risk and increase adherence to treatment but it also serves to reduce further contact with the criminal justice system into the future. Currently, social security payments may be paid to forensic patients if they are undertaking a course of rehabilitation—and that is an important point in the legislation. This bill will change that for forensic patients who have been charged with a serious crime, effectively treating them in the same way as a person who has been found guilty and who is in jail. Payments, however, will continue to persons in psychiatric confinement as a result of being charged with so-called 'non-serious offences', again, if they are undergoing a course of rehabilitation.

The National Mental Health Commission made submissions to the Senate inquiry and said:

The nature of the offence with which a person was charged – but not convicted – should not define whether they are taken to be in psychiatric confinement or undertaking a course of rehabilitation, nor should it be relevant to whether they have access to social security payment.

The South Australian Public Advocate also argued to the inquiry that distinguishing between people charged with serious crimes and those charged with non-serious crimes undermines the government’s argument that state and territory governments should be responsible for the cost of supporting forensic patients. That is an important point to be made as well.

The bills digest makes a really important point, one that should be considered by the government and the crossbenchers. The bills digest quite neatly says:

Overall, however, arguments about the appropriate boundaries for ‘serious’ and ‘non-serious’ offences would seem to miss the key criticism of the Bill, which focuses on the principle that the offender in all these cases has not been found guilty of any criminal offence due to their psychiatric condition. Thus distinctions between serious and non-serious offences are immaterial, since none of the offenders can be regarded as ‘morally culpable’, however serious the offence. The offences were performed by a person who has been found incapable of bearing guilt on the grounds of their psychiatric condition and they do not, therefore, possess the requisite degree of moral culpability, however much the charge itself may reflect a distinction between serious and non-serious offences.

It is not totally clear why the government has adopted this approach, especially when they did not consult on the measure prior to announcing it. They have done little to communicate the decision to ensure that those impacted by the measure are aware of the change—particularly states and territories, who will have to change the arrangements if this passes. Rather, it has been left to mental health services to communicate with patients, families and carers.

As the shadow minister for mental health, over the past few months I have been contacted by many organisations in the mental health sector as well as consumer advocates because of their serious concern about the impact of this bill on some of the most vulnerable people in our communities. Whilst people to be impacted by this measure have been charged with very serious offences, they are also people who are suffering significant mental health issues and need to be supported properly in their rehabilitation.

Forensicare, the state funded provider of forensic mental health services in Victoria, wrote to me, along with many others, to raise their concerns about the impact of the legislation. They believe forensic patients should not be treated differently to other patients in mental health facilities, particularly since their illnesses are so severe they are unable to understand the impact of their behaviour. Forensicare argues that, regardless of their offence, forensic patients should have the same right to social security benefits because they equally need rehabilitation and services which support a return to the community.

As I said earlier, the bill is not supported by the independent National Mental Health Commission. In their submission to the Senate inquiry into the bill, the chair of the commission, Professor Allan Fels said that the legislation is discriminatory and reinforces the stigma of mental illness and the view that confinement comes before rehabilitation. Under the proposals in the bill no income is proposed to be available to a patient charged with a serious offence until the person has had three nights per week of overnight leave.

In the second reading speech the minister said:

… it is the relevant state or territory government that is responsible for taking care of a person's needs while in psychiatric confinement, including funding their treatment and rehabilitation.

There is a point of consistency here that we need to explore. Let's always remember: these people have not been found guilty; they are not in the prison system; they are still in the mental health system and they are not guilty.

Let's look at what happens when patients in state run hospitals, who have been deemed to be in need of residential aged care or community aged care, are unable to get that aged care. After a period of time, there is a payment that is required of that person—a patient in a hospital who should be in residential aged care. It is called the 'nursing home type contribution rate', and it is 85 per cent of that person's pension. So that person is in hospital—they are there because they cannot be anywhere else, just like the person who is in psychiatric confinement—and they pay a portion of their pension toward their accommodation and food, in the same way that happens for people in psychiatric confinement. DVA also is billed for some gold card holders who are in hospitals, but who should more appropriately be in residential aged care, for their accommodation and food.

If this bill passes, there will be implications in a number of areas. First of all, the costs for accommodation and incidentals which the Queensland government submission to the inquiry listed as: clothing; phone calls, including mobile phones that are needed when people have leave from confinement; court costs; costs of training that they are undertaking as part of their rehabilitation program; and public transport in particular. Those costs will now become the costs of a family.

For many of these people family support is not high; let's be frank. For many of these people, the capacity of their family to support them is also not high. So the opportunity for true rehabilitation, in the view of many of the advocates who have spoken to me, will be diminished to the point where it will not occur as well as it should, if at all.

The other point is the transition period for a person who has been charged with a so-called 'serious offence' to a 'nonserious offence'. In that time, people are able to leave the facility; they are being part of society. And that has to happen in a very managed and controlled way, so that there is safety for all people concerned. It has been put to me that, if there is no access to any funds to support that person's transition, the ability for success is not going to be high.

Without income, patients will not be able to access the accommodation necessary to commence overnight leave as part of a leave program, which Mental Health Australia has warned could leave people homeless. The ability of patients to obtain the accommodation they need in order to be granted leave and eventually be discharged from confinement to live in the community will be undermined. The rehabilitation and leave system relies on a gradual process to ensure that recovery and risk are safely managed for the person and for the community. Leave is granted in a graduated program where the amount of leave granted increases, as it is safe and appropriate to do so. Access to accommodation and increasing amounts of leave to reside in community-based accommodation is critical to eventual discharge.

Mental Health Australia is also critical of the government's plan to redirect savings of $29.5 million over four years to 'repair the budget' and, in its submission to the Senate inquiry, urges the government, should the bill be passed, to redirect the savings to mental health services for people in prison or transitioning back to the community. It will be interesting to see if that course of action is taken should this bill pass.

Advocacy groups have also warned of adverse impacts on levels of compliance with rehabilitation and treatment programs or on the integration of people later released back into the community. Without social security payments and related concessions, patients will have limited capacity to engage in external activities that assist in recovery, including education and training programs. The removal of all income support for patients who are not in a period of integration will leave this vulnerable group with no means to meet basic needs that are not provided by the psychiatric institution and which are necessary in order to commence or continue a period of integration.

As we have heard, this bill was opposed by all submitters to the Senate inquiry. The Queensland government, the Victorian government, the New South Wales government and the ACT government all oppose this bill, with their submissions outlining the significant impact this legislation will have on the recovery of individual patients.

This is a clumsy, misguided policy response. It will hurt more people than it will help. As we have heard, we are talking about 350 people who are very unwell and who have not been convicted of a crime. They have serious mental illness. They are required by the judicial process they have been through to stay in psychiatric confinement, often a hospital—and, yes, that is a better place for them than a prison. But in order for them to undertake a program of rehabilitation and to see a light at the end of what must be a very dark tunnel, the answer is not to take away their disability support pension. That is what this bill is doing. If this bill passes the potential for successful rehabilitation of this small number of Australians who have potentially committed, but have not been convicted of, serious crimes—and whom we would all want to recover—will be diminished.

The idea that we will save $29.5 million—nearly $30 million—over four years but potentially damage the lives of 350 people is a false equation. This is poor legislation. The motivation for it has not been made, and I urge particularly the crossbench not to support the legislation.