Chapter 2
Key issues
2.1
The Bill returns the payment of social security to the pre-2002
position, where payments were withheld from people held in psychiatric
confinement as a result of being charged with an offence. However, the measure
has been updated to restrict social security payments only from those people
held in psychiatric confinement who have been charged with a serious offence.
People who have been charged with a non-serious offence would not have their
payments withheld.[1]
2.2
The Department of Social Services (Department) provided evidence to this
inquiry as to the intent of the Bill, and how its various provisions would be
implemented and operate.
2.3
Participants in the inquiry expressed concern with elements of the
proposed measures contained within the Bill, including:
-
the definition of serious offences;
-
the financial impact of the Bill;
-
the impact on clinical service delivery and reintegration, and
-
the definition of a period of reintegration.
Definition of serious offences
2.4
In order to give effect to the intent of the measure being introduced,
the Bill includes a definition of what constitutes a serious offence for the
purposes of restricting certain social security payments. The definition focuses
on serious offences that involve harm, or risk of harm, to a person.[2]
The proposed amendment to social security law will only
capture those persons who have been charged with a serious offence. The
amendments define a serious offence as murder or attempted murder,
manslaughter, rape or attempted rape as well as other violent offences that are
punishable by imprisonment for life or for a period (or maximum period) of at
least seven years.[3]
2.5
Submitters argued that the distinction between serious and non-serious
offences was arbitrary, because people with a mental illness are deemed not
morally culpable for their crimes, regardless of the seriousness of the
offence.
Persons in psychiatric confinement are there because they
have been found not to be morally culpable in the criminal justice system due
to severe mental illness, brain damage or intellectual disability. This applies
equally to serious and non-serious offenders.[4]
2.6
Submitters argued that people affected by this bill are being detained
for treatment, and argued that it was therefore not appropriate to treat their
social security payments in the same punitive manner as used for convicted
criminals:
The
detention of these individuals in psychiatric hospitals (and the soon to be
established Disability Justice Services in WA) is for the purposes of care and
rehabilitation, not punishment or deterrence.[5]
... [T]he Bill effectively treats forensic patients in the same
manner as those who have been found guilty of an offence and are serving a
prison sentence. It is unjust to punish forensic patients by removing access to
social security payments, when they have not been found to be morally culpable
for criminal acts due to severe mental illness, intellectual disability or
other cognitive impairment.[6]
2.7
However, the Department explained the intent of providing a distinction
between serious and non-serious offences, was to protect the continued payments
of social security for people who had not been charged with a serious crime.
The distinction between serious and non-serious crimes
protects those people with disability who are charged with less serious
offences and yet are confined. It is acknowledged that, in rare cases, certain
individuals who have been accused of lesser offences may be confined for
extended periods because there are not suitable services to support them in the
community. The government was concerned that these individuals not be affected
by this measure.[7]
2.8
The Social Security Act 1991 currently restricts payments to a
person in psychiatric confinement as a result of being charged with an offence.[8]
This bill would amend Social Security law to expand the eligibility of payments
to people in psychiatric confinement who have not committed a serious offence,
and to ensure that eligibility is expressly captured within legislation.
2.9
The Department also submitted that such a distinction between serious and
non-serious offences is not intended to be punitive, but is intended to reflect
that where people are charged with a serious offence, the duration of detention
without need to pay for reintegration expenses was likely to be a long period.
People who are alleged to have committed serious crimes that
do harm or are likely to harm others and who have been incarcerated by the
state would usually be confined for a significant period due to the degree and
length of time it takes for these patients to be ready to commence integration
into the community.[9]
2.10
Some submitters were concerned that the definition was too broad in
including acts that posed 'risk' of injury or property offences that endangered
a person.
2.11
The Department provided evidence that acts which did not result in
actual harm, or were not a property crime that endangered a person, would not
meet the 'serious offence' test.
It always involves risk of harm, or actual harm to a person.
I do not want to get into areas that are not my expertise, but you would imagine,
if it was an innocuous act, that a person would be unlikely to be charged and
unlikely to be confined due to that innocuous act.[10]
2.12
Submitters were concerned that the seven year sentence provision within
the definition of 'serious offence' would be triggered by the indefinite nature
of mental health orders:
All custodial supervision orders—except in I think, in New
South Wales and South Australia, which have limiting terms attached to
them—are, by nature, indefinite. It is not a sentence or a conviction and it is
based on the risk of harm posed by the person, and the decreasing nature of the
risk is what determines the length of time.
...
In states where there are not any limiting terms, all orders
are, by nature, indefinite. So, if they are indefinite, they will be captured.
It does not matter whether you are serious or non-serious under the definitions
proposed; all orders will be captured in the nature of this.[11]
2.13
The Department outlined that the removal of payments is not triggered by
mental health orders themselves, but whether the cause of the mental health
order was a criminal charge for a serious offence.[12]
The Department also discussed the consultations that had been undertaken with
the states and territories on the process to determine which offences would be
captured by the provision.
Again, we have consulted with the states and territories
about how Centrelink will know whether that person falls into that category.
Since we are talking about a limited number of institutions where a person is
confined, rather than the whole community, one approach could be that we
educate staff in those institutions about our proposed act—it would be an act
at that time—and what kinds of crimes are included in the definition of serious
offence. They would simply inform Centrelink that this person falls into that
category. That would be one approach we could take. Another approach that could
be taken would be for Centrelink to be given information about what the charges
were et cetera. That is not the preferred approach at this point, but we are
still working through that. We would in either case be dependent on the states
and territories knowing what the person had been charged with, of course.
2.14
A few submitters argued that the Department would have difficulty in
defining 'serious offences' across multiple jurisdictions, each with their own
criminal code.
It is understandable, as explained in the Memorandum, that it
is not possible to define specific offences under (9F) considering the varying
criminal laws of the states and territories. However, a number of questions
arise in terms of the administration of these subsections.
The first relates to who in the Department of Social Security
(the Department) will be responsible for assessing whether a charge is a serious
offence, especially those that might fall within the latter, undefined,
category. It would not be possible to simply have a specific list of offences
within the Department for each jurisdiction as a particular offence may be part
of this category depending on the factual circumstances, and not the charge
itself.[13]
2.15
The Department outlined that further consultations will be undertaken by
the Department to determine the implementation method, which involve either
Centrelink or individual institutions themselves determining when a person
meets criteria for suspension of payments.[14]
Financial impact of the Bill
2.16
The Department explained that social security payments, such as the
disability support pension, are intended as a safety net for those in need. The
Department provided information on the purpose of social security payments.
These payments should not be made where a person is confined
under state and territory law and their basic needs, such as food and
accommodation, are being met by the state or territory, as is currently the
case for those in prison. Corrections health and residential mental health
services are a state and territory responsibility.[15]
2.17
Some submitters raised concerns that security payments are often used by
forensic mental health patients to meet ongoing financial obligations, such as
maintaining housing or supporting family members.[16]
The vast majority of forensic patients in psychiatric
detention are entirely dependent on social security entitlements for their
income in order to pay their hospital fees, pay for simple comforts and to meet
other important financial obligations that may include previously incurred
debts, meeting ongoing commitments and maintaining their spouse and children.
Family support, engagement and connectedness, is another critical element in
the management of a forensic patient's recovery.[17]
2.18
The Department noted that the purpose of social security payments is to
provide income support to meet people's daily needs. Where that person is
confined by virtue of a state order, it is reasonable that those needs should
be met by the state or territory.[18]
The Statement of Compatibility with Human Rights outlines that family members,
where eligible, are able to receive social security payments in their own
right.[19]
2.19
Submitters raised concerns that the measure would result in
cost-shifting mental health services to states and territories, because in many
cases patients are charged fees for their accommodation and treatment. The
Queensland Department of Health estimated the Bill would result in a loss of $2.17
million per annum for the Queensland Government, as fees could no longer be
recovered from people impacted by this bill.[20]
2.20
During the committee's public hearing into the Bill, the Victorian
Institute of Forensic Mental Health (Forensicare) outlined that their
organisation also charged fees at one point.
CHAIR: I have an email here with some information
from, I think, one of your annual reports that suggests that patient
accommodation fees are charged for long-term involuntary patients. I am trying
to get to the bottom of this.
Mr Dalton: For a period in fiscal year 2012-13 we did
charge fees. Every other mental health service in the state charges fees for
long-term patients who have been there more than 30 days whether they are
involuntarily detained or not. If your brother or your sister has a mental
illness and resides in long-term treatment in a mental health facility they
will usually be asked to pay around 75 per cent to 80 per cent of their pension
as an accommodation charge at that facility. That is in the general mental
health system. For a period, Forensicare did charge those fees. We ceased that
after a period because we were in litigation in relation to it. We settled
that. Part of the effect of the settlement was that we ceased to charge fees.
CHAIR: You used to charge fees but you stopped. Why?
Why did you stop charging fees? Was it because there was litigation?
Mr Dalton:
It was part of litigation brought by a patient and the settlement of that.
2.21
The Department noted that in many cases, patients are charged up to 85%
of their DSP by the states and territory mental health institution to pay for
their treatment.[21]
The Department further noted that social security payments were not intended
for this purpose:
I am just saying that the Social Security Act does not exist
for the purposes of providing people with income support to support their
health needs, clearly. That is a matter for health. In this case, it is, in the
main, the responsibility of state and territory health agencies.[22]
2.22
The committee notes that in jurisdictions where a person was paying 85%
of their Disability Support Pension to the mental health institution where they
are detained, that person would be left with a maximum of $63.45 per week for
other expenses. The majority of funds from the social security payment goes to
the state or territory government or institution.
2.23
A submission from the Queensland Government Department of Health
outlines that Queensland provides an indigent allowance payment of approximately
$42 per week to mental health consumers who have no access to social security
benefits. [23]
2.24
The committee notes that such a payment could be used by other states
and territories to support people while in psychiatric institutions. This would
be more appropriate than a social security payment.
Impact on clinical service delivery and reintegration
2.25
Submitters raised concerns that patients would be unable to pay for
rehabilitation activities, such as education or accommodation costs during
leave, and this would have negative impacts on their progression through the
treatment regime.[24]
2.26
The Department outlined that the provision of corrections health and
mental health services, including rehabilitation activities, is the
responsibility of the states and territories and social security payments are
not intended for this purpose.[25]
A lot of the comments in submissions have said the provision
of income support is an integral part of rehabilitation and mental health
support. I am just making the point that that is not why the Commonwealth is
providing income support. The Commonwealth provides income support to meet
people's basic daily needs.[26]
2.27
Submitters raised concerns with the length of time and difficulty in
resuming social security payments after they have been cancelled, and that this
would delay reintegration. The Western Australian Association for Mental Health
and the Mental Health Association of Australia both recommended that payments
should be suspended rather than cancelled, to allow for payments to be more
quickly resumed upon release.
2.28
The Department outlined that payments were intended to be suspended for
two years in the first instance, and then cancelled after that period. This
would allow for a faster resumption of payments when a person became re-eligible
through release or by entering a period of reintegration.[27]
2.29
The committee notes that the majority of submissions provided evidence
around the impact that the removal of social security payments would have on
the general population of forensic mental health patients. However, no
submission provided any details specific to the cohort of patients who would be
affected by this Bill - people who have been charged with a serious offence
that involved risk of, or actual, personal harm. [28]
Definition of a 'period of reintegration'
2.30
The Bill will be supported by a legislative instrument which will define
the 'period of integration' during which social security payments would resume.
This would allow easier modification of the definition, should this be
required. The explanatory memorandum provided an example of what such a
definition could include:
A legislative instrument made for the purpose of new
subsection 23(9C) may provide, for example, that a period of integration back
into the community for a person is where the person regularly spends six nights
or more in a fortnight outside of the psychiatric institution. The legislative
instrument may also provide that a person’s day of integration back into the
community is the first day of the fortnight in which the person spends six
nights or more outside of the psychiatric institution. An effect of this would
be that the person’s social security payment is payable for the full fortnight,
even if the person spends some days in that fortnight in the psychiatric institution.[29]
2.31
Submitters raised concerns with this proposed definition, primarily
because reintegration is a gradual process, starting with one or two occasional
nights of community leave, increasing until reaching a quantum of nights in the
community that would trigger the resumption of payments. Submitters argued that
without income support, patients would not be able to meet accommodation costs
for overnight stays, which is a community-leave eligibility requirement set by
most psychiatric institutions.[30]
2.32
Some submitters argued that if payments are to be suspended, the same
methodology used for periodic detention should be used, where payments are only
suspended for each night spent in detention.[31]
2.33
The Department provided information that during consultations with the
states and territories, it was agreed by the majority that the most helpful
mechanism would be a trigger point at which the full amount of payments were
resume, rather than payments being made for single nights spent outside the
institution.
No approach has been settled. We are consulting on precisely
that. There are two obvious ways you could go. You could pay a person for a day
that they are out of psychiatric confinement, or you could pick a tipping point
at which more time is being spent or a certain amount of time is being spent in
the community and therefore they get their whole payment back. As I said, it is
not settled yet, but in consultations with the states and territories, on
balance, the view seemed to be that it would be better to take the second
approach, because if a person is transitioning back into the community and if
they are out for six days in a fortnight, as is the current proposal, they
would need their whole payment to re-establish themselves in the community.[32]
2.34
As noted above, the Department explained that the approach has not yet
been settled, and that further consultations would be undertaken.
Senator CAROL BROWN: So, you are consulting in terms
of developing the legislative instrument with the states and territories. Is it
a broader consultation?
Ms Halbert: We have—I have given away my list
now!—consulted with some other key stakeholders in the sector as well, and we
will continue to do so.[33]
Committee view
2.35
The Bill seeks to ensure that social security payments are not made to persons
in psychiatric confinement who have committed a serious offence and who are not
in any period of reintegration into the community. The committee agrees that
the Bill will achieve this purpose.
2.36
Many participants in the inquiry did not agree with the premise of the
Bill, which seeks to ensure that persons held in psychiatric confinement as a
result of being charged with a serious offence should be treated in the same
manner as a person in gaol, in respect of social security payments. However, the
committee notes that this is not a new measure, and that social security law
has included such an approach since 1947.
2.37
The committee notes that this Bill would amend social security law, so
that people who are held in psychiatric confinement after committing a
non-serious offence would have their eligibility for social security payments expressly
protected by legislation for the first time since at least 1947.
2.38
Submitters and witnesses expressed concern with the proposed definition
of the 'period of integration' which triggers the resumption of payments.
Submitters questioned the formula given as an example in the explanatory
memorandum. The Department noted that this proposed formula was drafted in
consultation with the states and territories, and was based on the majority
view from those consultations as to the formula most beneficial to patient
recovery.
2.39
The Department advised that the definition of the 'period of
integration' would be contained within a legislative instrument and further
consultations would occur before any implementation. The committee is satisfied
that this process would allow for any additional concerns to be appropriately
addressed. The committee notes that if this is brought forward as a
disallowable instrument, the definition will be the subject of parliamentary
scrutiny.
2.40
With these findings in mind, the committee makes the following
recommendations:
Recommendation 1
2.41
The committee recommends that the Social Security Legislation Amendment
Bill 2015 be passed.
Recommendation 2
2.42
The committee recommends the Department continue with its proposed
consultation on the definition of a 'period of integration.'
Senator Zed Seselja
Chair
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