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Cases

Malcolm Baker: Letter to Commissioner

Dear Mr Severin,

We are following up on the ruling made by the Mental Health Review Tribunal on July 14, 2016 regarding Malcolm George Baker min 221029. The Tribunal rejected the application by Justice Health for an order to retain Mr Baker in the mental health facility at Long Bay. We now ask that you facilitate Mr Baker to be transferred back to his designated placement, South Coast Correctional Centre at Nowra. This man has been treated appallingly in the past, once again exposed as being wrong when properly examined.

The hearing was attended by the Directors of Custodial Services Mental Health Drs Perry and Chew as well as the acting head of the treating team Dr Eugene Ho. Justice Health said that if he were on forced medication, he would become less vocal, it would improve his interaction with others and not disturb others at night. The Tribunal heard arguments from Malcolm’s barrister Ben Fogarty, as well as evidence from psychiatrist Dr Yola Lucire and me as designated carer. The Tribunal found no justification for holding him in the hospital and being forcibly medicated. It agreed that Mr Baker presents no risk of serious harm to himself or others. It heard that he needed a job and an interest with social support. His family and Justice Action are beside him.

After a similar hearing by the Tribunal on April 30 last year the Tribunal similarly refused to order his retention in the Long Bay hospital. But subsequently he was held in the mental health pod of the MRRC for 15 months, with a series of unstable people in transition around him, no job, education and no chance for settling down. It wasn’t fair to him as it was destabilising, especially he has already suffered 15 years in solitary confinement. He wanted to be mainstreamed, do something useful, and create relationships as he should be entitled to after serving 24 years. We counselled him to be patient, speaking with him every few days, believing his return to Nowra to be imminent. Despite this destabilising situation he behaved very well, not being accused of breaching any rules.


In light of the Tribunal’s second decision, we seek support from Corrective Services NSW to resettle Malcolm as early as possible back in Nowra with a job and people around him with whom he can relate. He also needs hearing aids – a matter that was exposed during the latest hearing as the reason for him shouting at night to his friends. We are in a mentoring relationship with him and are prepared to negotiate with him and management if a problem does arise.

Please acknowledge upon receipt,

Kind regards,

Brett Collins
Coordinator

Letter sent to Justice Health

Mr Forrest

Acting Chief Executive

Justice Health and Forensic Mental Network

Dear Mr Forrest,

The Justice Action Team is writing to draw attention to the case of Mr Malcolm George Baker min 221029 and what occurred.

The Tribunal rejected the application by Justice Health for an order to retain Mr Baker in the mental health facility at Long Bay as the Tribunal found no justification for holding him in the hospital and being forcibly medicated. It agreed that Mr Baker presents no risk of serious harm to himself or others. It heard that he needed a job and an interest with social support. He was accused of being delusional as he had alleged corruption between the pharmaceutical industry and the government and said that he was being prosecuted. This was the third time the Tribunal rejected his forced medication after our intervention. This indicates a serious cultural problem in our opinion.

We would like to schedule a meeting with Justice Health in response to the Mental Health Tribunal hearing on 14th July 2016 to examine the failures and look for future solutions so it does not reoccur to him and others.

After a similar hearing by the Tribunal on April 30 last year the Tribunal similarly refused to order his retention in the Long Bay hospital. But subsequently he was held in the mental health pod of the MRRC for 15 months, with a series of unstable people in transition around him. No job, education and no chance for settling down. It wasn’t fair to him as it was destabilising, especially as he has already suffered 15 years in solitary confinement. He wanted to be mainstreamed, do something useful, and create relationships as he should be entitled to after serving 24 years. We counselled him to be patient, speaking with him every few days, believing his return to Nowra to be imminent. Despite this destabilizing situation he behaved very well, not being accused of breaching any rules.

In light of the Tribunal’s third decision, we seek support from Justice Health NSW to assist Malcolm to returnas early as possible back to Nowra with a job and people around him with whom he can relate. We are in a mentoring relationship with him and are prepared to negotiate with him if a problem does arise. We feel a social response to any tensions that would be treated effective.

Justice Action Team would like to take this opportunity to cooperate with Justice Health in designing an amicable solution for the future. When would suit you for a meeting?

Please acknowledge upon receipt,

Kind regards,

Jessica Chal

Justice Action Team

Letter sent to NSW Legal Aid

To

Mr Robert Wheeler

Mental Health Advocacy Service

Dear Mr Wheeler,

We want to draw your attention to the case of Mr Malcolm George Baker min 221029 and what occurred at his recent Tribunal Hearing on 14/7/16.

The Tribunal rejected the application by Justice Health for an order to retain Mr Baker in the mental health facility at Long Bay as the Tribunal found no justification for holding him in the hospital and being forcibly medicated. It agreed that Mr Baker presents no risk of serious harm to himself or others. It heard that he needed a job and an interest with social support. He was accused of being delusional as he had alleged corruption between the pharmaceutical industry and the government and said that he was being prosecuted

Please find ourmedia release under the email.

The hospital obstructed the defence at all stages. It refused the independent psychiatrist access to the medical records and didn’t release the Review documents until the hearing. The Tribunal claimed that it didn’t have the power to intervene. Dr Lucire pointed out that the tribunal could not deliver justice if one side was prevented from giving proper evidence. “That alone makes the legislation a sham” she said.

The top two Directors of Mental Health in Custodial Services attended the hearing as well as the psychiatrist leading the treating team. The defence was pro bono and privately funded. “There were at least 10 people in the room and the costs of such careless diagnoses need to be sheeted back to those who make them” said Dr Lucire.

Legal Aid NSW had referred us to the Mental Health Advocacy Service. However, Mr Baker felt no confidence in that service from his previous experience. We had no choice but to look elsewhere. We would like to use legal aid financial support for our focus cases as with Saeed Dezfouli. How can we make this process work to allow better outcomes for everyone in the future?

Please be sure that this email is not to criticize the judgment of Legal Aid NSW but rather to support the different approaches needed to create change. What do you think can be done?

Please acknowledge upon receipt,

Kind regards,

Jessica Chal

Justice Action Team.

How many victories are necessary to win

Malcolm Baker found himself back at Long Bay Hospital and was desperate to stop being involuntarily injected. On the 6th July 2016 he was injected again. He was injected with antipsychotic medication although it was known at the time that barrister Ben Fogarty and psychiatrist Dr. Yola Lucire had been briefed to oppose.

Ultimately the hearing on the 24th July 2016 was a success as the Tribunal found that they were not persuaded on the evidence that Malcolm Baker presented a serious risk of harm to himself or others, thus there was no justification for forced medication.

Background of the hearing
On the 8th of June 2016 the Director-General under s 55(3) of the Mental Health (Forensic Provisions) Act 1990 (NSW) ordered Malcolm Baker to be transferred to the mental health facility at Long Bay Correctional Centre without his consent on the grounds of having a mental illness. He was being held at the Metropolitan Remand and Reception Centre (MRRC) at Silverwater prior to this transfer.

The transfer was challenged at the Mental Health Review Tribunal on the 24th July 2016 by a team of passionate advocates who argued that Malcolm Baker was not a mentally ill person as per the definition in s 14 of the Mental Health Act 2007 (NSW). Malcolm Baker presented himself reasonably to the tribunal. Ultimately the Tribunal found that whilst Malcolm Baker has the symptoms of a mental illness he did not satisfy the definition in s 14 as there was no risk of serious harm to Malcolm Baker or others to make his transfer at and treatment necessary.

Although this outcome is a huge victory for Malcolm Baker, it raises serious concerns about the criminal justice system and its successful deliverance of mental health programs. It was just last year that Malcolm was brought before the Tribunal to answer the exact same question.

Media Release: Mental Tribunal Rejects Prisoner’s Forced Medication, for the Third Time.

Lack of Support

One of the most concerning issues surrounding the circumstances of Malcolm Baker’s hearing before the Mental Health Review Tribunal was the absence of NGO, government and personal support that would otherwise be provided to individuals facing similarly high levels of critical questioning. Individuals and organisations whose role it is to assist vulnerable individuals like Malcolm Baker were nowhere to be seen.

Mental Health Advocacy Service:
In preparation for the hearing Malcolm Baker applied for the assistance of legal aid. On the NSW Legal Aid form, in answer to the question, ‘Do you have a solicitor that you want to represent you and who will agree to accept a grant of legal aid (if it is made)?’ Malcolm Baker provided the details of a barrister he wished to represent him. On the 11th July 2016 Malcolm Baker received a response to his application. He was granted aid but the legal assistance was to be provided by the Mental Health Advocacy Service (MHAS) rather than by the barrister who he had retained for his case. He was told that this was a consequence of the limited resources available to fund private counsel.

This raises a number of concerns. Firstly, it raises doubts about the quality of legal services that would have been provided by the Mental Health Advocacy Service. The implication of the response suggests that the services provided by the MHAS were less and therefore warranted less financial expenditure.

The response fails to consider whether or not the barrister may have accepted whatever grant Legal Aid was prepared to give to cover the retainer. Secondly, it provides yet another impediment to consumer choice – particularly crucial when dealing with issues surrounding someone’s mental health. In these instances it is paramount that the client has someone they can trust represent them. It was later explained that Malcolm Baker had been the recipient of the services of MHAS in the past but did not feel ‘properly supported’ by them.

Justice Action arranged instead to cover the expenses of the retainer for the barrister Ben Fogarty at a reduced rate.

It was then asked whether the legal aid funding allocated for Malcolm Baker could be redistributed to cover the expenses of providing for an independent psychiatrist support, namely Dr Lucire. Retaining a psychiatrist would be ordinary practice of the MHAS and thus an expected expense.

Following the successful result for Malcom, Justice Action reached out to Legal Aid NSW for an explanation as to their denial of Malcolm’s chosen barrister. Justice Action also requested that Legal Aid NSW provide further information so as to ensure this particular outcome did not occur again. This was done to clarify a working relationship that should be beneficial for both Justice Action and Legal Aid NSW. A copy of the letter sent to NSW Legal Aid is available here

Following receipt of the letter, the Mental Health Advocacy Service (MHAS) replied with little concern or empathy for Malcolm’s situation. In their brief reply, they ‘helpfully’ redirected us to an application for Legal Aid funding. Their response did not acknowledge our request for a long-term collaborative effort between our two organisations to improve the delivery of legal services in corrective services, ease of access to appropriate funding and to prevent further violations of well-recognised human rights.

Justice Health:
The fact that this was Malcolm Baker’s third hearing before the Tribunal is concerning. It illustrates there is a cultural problem in Justice Health that attempts to overpower vulnerable people.
The Department also uses their power to forcibly medicate as a management tool rather than speaking to individuals like Malcolm Baker as human beings and addressing problems that lead to his lack of cooperation and opinionated objections.

Throughout the lead up to the hearing Justice Health thwarted Malcolm Baker’s capacity to defend himself. The hospital refused to grant the independent psychiatrist access to Malcolm’s medical records. Access to the Justice Health report was also not available until the hearing.

These actions suggest that not only is Justice Health not serious about providing quality and informed health services to its patients, but that it is willing to stifle efforts for the patients to seek beneficial outcomes for themselves. These recent actions by Justice Health suggest that it is frightened when its own practices are questioned and are worried about being exposed. This leads to a refusal to collaborate with the patients support team.

During the MHRT hearing Malcolm Baker’s designated carer, Brett Collins, made clear that he was happy to assist and be part of the solution including future assistance with problems and negotiating further treatment if and when it is required. We have since reached out to Justice Health seeking to work with them and organise a meeting. A copy of the letter sent to Justice Health is available here.

Being the primary drivers of the application to retain Malcolm in the mental health facility at Long Bay hospital, we look forward to a more detailed response from Justice Health (JH) in regards to our letter. We thank JH for acknowledging that they have received this letter. In their next response, we hope that JH acknowledge and allow our request for a meeting to discuss strategies and policies that can be implemented to avoid wrongful retention of involuntary patients in the future. 

Community Reference Group:
The Community Reference Group (CRG) has also failed to provide assistance. In the past, current prisoners could access meetings of the CRG. Now however, they are excluded. This illustrates that the CRG is no longer making themselves receptive to the people it strives to assist. This sentiment is also evident in the unwillingness of the CRG to respond to topical issues affecting prisoners. This was apparent when they provided no comment to the Inspector of Custodial Service’s Full House Report, which highlighted the overcrowding in NSW correctional centres.

It is suggested that the lack of willingness to be receptive and vocal on prisoner issues stems from a structural problem. The CRG draws it’s funding from government. As a result its actions, and/or lack thereof with regards to the championing of prisoner issues suggests that its status is compromised. A failure to properly critique and provide assessments of government policy is immensely significant as it illustrates an inability to properly serve its purpose.

The letter sent to the Community Reference Group is available here.

Through the advisory role they hold with Justice Health, the CRG must provide information and confront the culture and abuse of power by health personnel. With a significant portion of this abuse concentrated within the prison system, the minimal amount of responses from individual members to the letter can only be described as disheartening. We look forward to receiving more replies from the CRG as we hope to discuss our membership in the CRG. A membership that will be mutually beneficial as we our uniquely qualified to provide valuable insights into the prisoner health system with the experience we have accumulated by working with people such as Malcolm.

Corrective Services NSW:

By not adhering to the ruling of the Mental Health Review Tribunal on the 24th of July 2016, the detainment of Malcolm in the mental health facility at Long Bay, Corrective Services NSW (CSNSW) added to the corruption and abuse of power within the prison system. Following our recent success with transferring Malcolm out of the facility, we followed up with CSNSW to ensure that Malcolm was allowed to return to South Coast Correctional Centre (SCCC) in Nowra.

A copy of the letter can be found here.

We would like to thank CSNSW for promptly acknowledging and replying to our letter. It can be confirmed that over the next couple of months Malcolm will be transferred back into the positive environment at SCCC following a temporary stay at the “mental health step down units at the Metropolitan Remand and Reception Centre.”

‘Under Attack Again’ April 2015

After 23 years of non-violence Malcolm Baker is once again under attack. Having been moved to Long Bay Hospital Prison in February 2015, Malcolm is subjected to conditions tantamount to torture, including forced medication without justification. He is rendered semi-comatose with other severe side effects. See open letter to psychiatrist Dr Simonelli and letter to Tribunal by Malcolm 30/7/2012.  Media release April 30, 2015

Despite being settled in a correctional facility in Nowra and working in a stable job, in February 2015 Malcolm Baker was committed to an indefinite stay at Long Bay Prison Hospital. Two certificates provided the basis for Justice Health to take him to the prison hospital and forcibly inject him. The reason given was that he had sent letters with ideas and drawings to individuals such as Senator Clive Palmer. In addition to this, Justice Health said that the violent nature of Malcolm’s crime in 1992 indicated a present violent mental state.

Justice Action rejects these propositions. The reasons above are not signs of mental illness as defined by the Mental Health Act 2007 (NSW). Baker’s aversion to medication is natural given the terrible side effects he previously experienced being forced to take such medication in 2012. Writing letters to Senator Clive Palmer is not any indication of mental illness; he is a prominent political figure in Australia and writing to him is within the rights of every citizen. The Mental Health Act 2007 section 14 only allows forced medication if the individual is a risk of serious harm to themselves or others. Many prisoners have committed past violent acts, however this doesn't dictate the future. If past acts are accepted as an indication of mental illness, many more prisoners and others will be diagnosed as a risk and medicated.

The Mental Health (Forensic Provisions) Act 1990 (NSW) states that a transfer between correctional centres and/or mental health facilities is only lawful if two certificates are issued by medical practitioners, one of whom must be a psychiatrist. We discovered that a nurse in Nowra had cosigned the certificate, in breach of the requirement. Then on the 4th of March, Brett was denied access to the Long Bay Prison Hospital to appear alongside Malcolm as primary carer for a Tribunal hearing, to present the defence. Denying him access was a clear denial of Malcolm’s right to support. Later they said it was because Justice Health authorities failed to notify the prison as it was required to do.

Currently, Malcolm is being subjected to appalling treatment that is in breach of the basic standards of humanity and dignity as outlined in the Optional Protocol to the Convention Against Torture 2006. He is restrained bi-weekly by prison nurses and forcibly injected with anti-psychotic drugs. They result in him lying down all the time, feeling sick, slurring his words and forgetting words during the sentence he begins, having an abnormal heart rate, itchy skin and negates any sexuality. Malcolm has written a letter stating that the psychiatrist who has misdiagnosed him with a mental illness is also degrading towards him and described him as being paranoid, angry, delusional and having mood swings. Who wouldn't be unhappy?

Media release: Mental Tribunal rejects prisoner’s forced medication, for the third time

IMG_1915.jpg

The prisoner who was accused of being mentally ill for writing to MP Clive Palmer last year, has again successfully opposed the diagnostic formulations of his treating doctors. They had insisted on using enforced medication that his poor metaboliser genotype, tested in 2012, demonstrated that he could not metabolise. This is a landmark victory.

“The adverse effects of the drugs with which he was injected this time and those he was given in the past are described as ‘torture’ in the literature and by the patient. Such drugs were used to torture Soviet dissidents until 1974 because in Russia, people who opposed the government were deemed to be mentally ill under the Russian mental health act. Mr Baker was said to be suffering from delusions because one of the topics in which he has interest and about which he knew quite a bit was corruption in the pharmaceutical industry. He was desperate to stop them injecting him again and having again misdiagnosed him with paranoid schizophrenia” said psychiatrist Doctor Yola Lucire.

Justice Health said that his ideas made him vulnerable to attack from other prisoners and the medication would make him less vocal. The hospital had already held him down and injected him with antipsychotic medication although they knew barrister Ben Fogarty and psychiatrist Yolande Lucire had been briefed to oppose them in a hearing a few days later.

The Tribunal found no justification for holding Mr Baker in the hospital and being forcibly medicated. It agreed that Mr Baker presented no risk of serious harm to himself or others. It heard that he needed a job, an interest and stability. It ordered that he be removed from the hospital.

The certificates that brought Mr Baker before the Mental Health Review Tribunal were signed by two doctors who did not speak to the patient, did not disclose that fact, and did not appear at the Tribunal hearing. Evidence was given by others only one of whom had had any contact with the patient and who appeared to offended by Mr Baker's topics of conversation but did not appear to challenge his beliefs. None of those paid to monitor health delivery helped him or other prisoners. Not the Board, Legal Aid, nor the Board running the Community Reference Group. It is a disgraceful culture that they have developed, but Health has the money to buy everyone.

“Small wonder that bed requirements in NSW for the forensic patient population nearly trebled between 1992 and 2003 to accommodate a misdiagnosed population who are treated with drugs they cannot metabolise and have no possibility of recovery. This has all increased with new drugs whose side effects our doctors do not recognize” said Dr Lucire.

The hospital obstructed the defence at all stages. It refused the independent psychiatrist access to the medical records and didn’t release the Review documents until the hearing. The Tribunal claimed that it didn’t have the power to intervene. Dr Lucire pointed out that the tribunal could not deliver justice if one side was prevented from giving proper evidence. “That alone makes the legislation a sham” she said.

The top two Directors of Mental Health in Custodial Services attended the hearing as well as the psychiatrist leading the treating team. The defence was pro bono and privately funded. “There were at least 10 people in the room and the costs of such careless diagnoses need to be sheeted back to those who make them” said Dr Lucire.

During the hearing the Tribunal asked: “What would you like the doctors to do for you?” Mr Baker responded, “Just leave me alone.” Later in the hearing the Tribunal discovered that he had been shouting out at night. The 69 year old is deaf in his left ear and 25% in his right. The hospital was asked if they would fit aids for him. “After 24 years!".

For 15 of his 24 years in jail, Mr Baker had been held in effective solitary confinement in super max despite the fact that he has never been aggressive or violent in hospital although he had some adverse drug reactions when forced to take a drug associated with suicide and homicide. He had been moved from cell to cell every four weeks, and denied stability. When out of his unit, he was put in leg irons and handcuffs. He was assaulted several times when his possessions smashed while guards watched. He was told he was mentally ill and was forcibly medicated despite his requests that he be left in peace, have a job and mix with others.

After a similar hearing by the Tribunal on April 30 last year, the Tribunal ordered his removal from the hospital. But he was held in the mental health pod of the MRRC for 15 months, with a series of unstable people in transition around him, no job, education and no chance for settling down. He was set up to fail – but didn’t.

We have asked Commissioner Peter Severin to return Malcolm to Nowra.

Malcolm Baker

malcolm baker photo for website update

LATEST NEWS
Report on Medical Watchdogs' Failure: October 2016
Request to Return to Nowra: November 2016
Victory - Tribunal in Favour: July 2016

OVERVIEW
Malcolm Baker was sentenced to natural life imprisonment in 1993 for the murder of 6 people including his own son, in the space of 50 minutes, after discovering his partner with another man. He gave himself up and pleaded guilty. He has been incarcerated for 24 years, 15 of which have been served in effective solitary confinement in the High Risk Management Unit in Goulburn Correctional Centre, although he has been a model prisoner. No-one will explain why he was held there under those conditions, but police were related to victims. People who meet Malcolm appreciate him as a person, with friendly eyes and a gentle manner. He has nine children and other family who love him.

A comprehensive overview of Malcolm’s background, offences, court proceedings and convictions can be found here.

See Malcolm Baker's Full Profile

HISTORY

- 2015: Under Attack Again' April 2015
After 23 years of non-violence Malcolm Baker is once again under attack. Having been moved to Long Bay Hospital Prison in February 2015, Malcolm is subjected to conditions tantamount to torture, including forced medication without justification. He is rendered semi-comatose with other severe side effects. See open letter to psychiatrist Dr Simonelli and letter to Tribunal by Malcolm 30/7/2012.  

See Media release April 30, 2015

2014: Malcolm was moved from Goulburn to the South Coast Correctional Facility in Nowra, where he demonstrated an ability to successfully socialise into the general prison population. However, in February 2015, Malcolm was given an unfair focus and was moved to Long Bay Prison Hospital to be forcibly given mental health treatment despite inadequate justification.

- 2012: Malcolm was issued a Community Treatment Order (CTO) by the Mental Health Tribunal legally enforcing him to take medication. This CTO expired on the 7th of August 2012. However, both Malcolm and Justice Action were not notified that his CTO had been discontinued until February 2014 and consequently, Malcolm continued to take and suffer from unnecessary medication without any notice from Justice Health. Moreover, Malcolm continued to be held in an A1 High Risk Security Prison even though he no longer required a CTO and had been acknowledged as displaying calm and cooperative behaviour by health and prison records.

GENERAL ISSUES

Forced Medication 
Community Treatment Orders  

RELATED CAMPAIGNS and DOCUMENTS

An Open Letter to the Long Bay Treatment Team
Malcolm Baker's letter to the Mental Health Review Tribunal
Malcolm Baker – A Breach of the Torture Convention
Impact of Isolation and Mental Health
Justice Health National Symposium

Appalling Outcome Report: Rehospitalised - 16th November 2016

Overview

The case of Michael Riley illustrates how the mental health system consistently fails to protect the rights of individuals whose behaviour is perceived as indicative of mental illness. In particular, it sheds light on how interpretations of section 14 of the Mental Health Act 2007 (NSW),1 which stipulates the definition of ‘mentally ill’, are often unsubstantiated by tangible evidence. This results in vague and imprecise outcomes. Mr Riley’s case also demonstrates how the mental health system favours immediate medication-based solutions, as opposed to social support mechanisms. Mental health institutions employ forced medication as a simple ‘fix’ rather than holistic long-term rehabilitation via support systems. In fact, as Mr Riley’s Designated Caregiver, Justice Action was not notified of his forced hospitalisation. The Mental Health Act is designed to protect individuals perceived to have a mental illness.2 Overall, Mr Riley’s situation highlights that mental health institutions show little respect for these safeguards for civil liberties.

Michael Riley was diagnosed with Schizoaffective disorder in early 2000. Since then, he has been admitted to mental health units on more than 17 occasions. Notably, there is clear agreement amongst health care professionals and family alike, that Mr Riley has never harmed anyone, nor does he pose a threat. Mr Riley lives with his mother, sister and brother-in-law. He also has a seven-year-old daughter called Anna. He has a mixed relationship with his family, who have frequently called the police and ambulance services when he has displayed behaviour indicative of mental illness. Mr Riley has a degree in Economics and Political Science from the University of Sydney. Mr Riley was completing his honours thesis when he was reported as having a mental breakdown.


Admission to Blue Mountains Mental Health Unit 2 November 2016

Mr Riley was admitted to the Blue Mountains District Anzac Memorial Hospital as an involuntary patient on 2nd November 2016, following a visit by Community Mental Health and police to his home. Mr Riley’s family had raised concerns regarding his mental health, having observed him speaking to the television and himself, fixating on news regarding the conflict in Syria, and displaying severe agitation. However, Justice Action, who is a Designated Carer for Mr Riley (as per section 71(c)),3 was not initially contacted about his hospitalisation. This is indicative of the mental health system’s immediate employment of force, as opposed to utilising social support mechanisms.


Arrangement of the MHRT hearing

An MHRT hearing overseen by Mr John Hislop was held on 16th November 2016, at the head office in Gladesville. The purpose of the hearing was to determine whether Mr Riley is mentally ill and whether he would be required to remain as an involuntary patient. Mr Riley attended the hearing via video from the Blue Mountains Mental Health facility.

The MHRT initially sought to exclude Justice Action from the hearing on the basis that the proceedings in Gladesville were not open to the public and subsequently Justice Action would need to attend in the Blue Mountains with Mr Riley. Nevertheless, Justice Action’s attendance at Gladesville was eventually accepted. Additionally, Justice Action was originally denied access to the documents that were to be brought against Mr Riley on the basis that Justice Action was not considered formal legal representation. However, following email communications with Rodney Brabin (Registrar for the MHRT) and consideration by the tribunal, Justice Action was given access to the documents and permission to represent Mr Riley.

Mr Riley wished to be discharged from the mental health facility without a Community Treatment Order (CTO). A Community Treatment Order is a legal order prepared by the Mental Health Review Tribunal or by a Magistrate.4 This order sets out the terms under which a person must accept medication as well as rehabilitation, counselling, supervision, and other services.5

Mr Riley believed that, given he had no criminal record and that there was no actual evidence to indicate he was a threat to himself or others, there were no grounds for him to be involuntarily admitted to the mental health facility.

Although the decision made by the MHRT in relation to Mr Riley was most likely able to be appealed, if he were ultimately discharged from the hospital, negotiations regarding the situation with his family and living arrangements would still be required.


Evidence given at the MHRT Hearing 16 November 2016

Dr Yvonne Djurovic presented a medical report during the tribunal. Dr Djurovic acknowledged Mr Riley’s diagnosis of Schizoaffective disorder in 2000. As mentioned above however, Mr Riley does not accept this diagnosis. The report further detailed that Mr Riley had not been taking his prescribed medication for three to four months and had subsequently suffered a relapse of psychosis. Dr Djurovic reported that Mr Riley was irritable and paranoid on admission, and that he wishes to live in China or Russia to escape persecution. It was reported that Mr Riley suffers from delusions and has been has been very vocal in regards to political issues, particularly the recent election in the United States.

Significantly, Dr Djurovic noted that Mr Riley was in fact at risk from suffering injury from other patients and as a result, was moved to a closed ward for his own protection. Dr Djurovic also established that according to Mr Riley’s family, he ‘had never harmed anyone’ and did not pose a danger to himself.

Dr Djurovic suggested that an appropriate course of action for Mr Riley would be to continue hospital treatment for up to four weeks. Following this, a discharge plan involving a CTO and a community-based mental state-monitoring program could be implemented.

A form completed by Dr Pauline Byrne as to the mental state of Mr Riley was also given in evidence. The comments on the form completed by Dr Byrne found Mr Riley to be a mentally ill person, evidenced by his pressured speech and paranoid delusions. Additionally, a Progress Note completed by Dr Bridget Regaily reported that Mr Riley had been agitated to the point of screaming, was talking to the television, referenced the Syrian War and wished to move to China. Dr Regaily also concluded that Mr Riley was mentally ill.

Other Mental Health progress reports demonstrated that Mr Riley’s cooperation was improving, and that he had become more settled and less agitated, despite his delusions persisting.


Arguments made for Mr Riley at the Hearing

It was argued on Mr Riley’s behalf that his delusions regarding political events did not indicate a mental illness or disorder, in accordance with section 16(1)(a).6 Mr Riley understands that an individual is entitled to their own religious and political beliefs and that expressions of, or failures to express a certain political or religious belief are entirely insufficient to indicate that a person has a mental illness (according to 16(1)(a)). Moreover, despite the fact that anti-social behaviour was used to justify Mr Riley’s mental illness, it was argued that section 16(1)(l) deems anti-social behaviour as inconclusive in indicating mental illness.7

Furthermore, it was argued that Mr Riley has never exhibited violence towards himself or other people and would thus not satisfy the criteria in sections 14(1)(a) or 14(1)(b) for requiring ‘care, treatment or control’ owing to mental illness.8

Notably, Dr Djurovic’s report indicated that Mr Riley was in fact at risk of harm from other patients whilst being held at the hospital. This raised questions as to the hospital’s duty of care towards Mr Riley and whether adequate steps had been taken at a management level to ensure appropriate treatment of patients.

It was similarly argued that Mr Riley’s social support network as well as the requirements in section 14(2) regarding ‘the continuing condition of the person’, failed to be considered in the decision to retain him as an involuntary patient.9 Given the constant lack of success with previous interventions, it is unlikely that admission to hospital would produce positive results in Mr Riley’s situation. As such, it may be more beneficial to Mr Riley’s ‘continuing condition’ that he be able to utilise social support. Moreover, in its findings, the tribunal failed to consider Dr Djurovic’s acknowledgement of Mr Riley’s potential for improvement.

Finally, in Mr Riley’s case, section 68 of the Mental Health Act was not observed.10 This section requires people with a mental illness receive care in ‘the least restrictive environment’ possible.11 This was breached when Mr Riley was placed in a closed ward. This action seemed unnecessary and grossly restrictive given that the reason for doing so was for Mr Riley’s protection rather than the prevention of harm to other patients. Similarly, section 68(f) states ‘any restriction on the liberty of patients…is to be kept to the minimum necessary in the circumstances.’ In holding Mr Riley within a closed ward, no consideration was given to holding him with an environment that may have been more appropriate to his treatment, such as one that utilises his support system.

The Tribunal’s Finding

The tribunal held that Mr Riley would remain as an involuntary patient, undergoing review in four weeks on 14 December 2016.

Mr Hislop provided no findings of facts and did not outline the evidence he examined to support his decision. Mr Hislop merely stated that the requirements of the Mental Health Act were proven. Mr Riley was supplied with an incomprehensible written document, which Justice Action believes outlined more detailed reasons for the decision of the tribunal.

Mr Riley’s Perspective on the Hearing

Mr Riley believes that the mental health system does not strive to achieve justice for people perceived to have a mental illness. He asserts that he did not have a chance of being discharged at the tribunal, as he believes that the tribunal sought to avoid setting a precedent that would allow other individuals, in similar situations to Mr Riley, to be released. Mr Riley does not want a CTO and believes he does not require one owing to no prior history of violence, or any experience with violence-related activities or sports. Mr Riley believes the only way he will ever be discharged is if he agrees to take medication and accepts that he is mentally ill, despite the fact that he does not believe this to be true. Mr Riley expresses that he does not believe that medication is an appropriate solution and has conveyed frustration towards the focus placed on medication, as opposed to ensuring access to his support system or stable accommodation.

Mr Riley’s family attended the tribunal with him at the Blue Mountains hospital and attended via video. Mr Riley states that his family did not speak with him afterwards and left immediately following the tribunal.

Justice Action’s Perspective on the Hearing

Mr Riley was treated with respect and decorum at the hearing. Nonetheless Justice Action was appalled that the tribunal made no finding of fact to support the ultimate declaration of Mr Riley as mentally ill under the Mental Health Act. The evidence was clear that there was no justification for such a verdict. The tribunal had a legal obligation to apply the act correctly and to support this application with fact. This duty went unsatisfied. Justice Action is yet to see a fair outcome for Michael Riley but continues to seek a fair result.

 

Bibliography

1 Mental Health Act 2007 (NSW) s 14.

2 Ibid s 3.

3 Ibid s 71(c).

4 Mental Health Review Tribunal, Community Treatment Orders (2013) NSW Governemnt <http://www.mhrt.nsw.gov.au/civil-patients/community-treatment-orders.html>

5 Ibid.

6 Mental Health Act 2007 (NSW).

7 Ibid.

8 Ibid.

Mental Health Act 2007 (NSW).

10 Ibid.

11 Ibid.

The States Assault of the Mentally Ill- The Case of Michael Riley

About Michael 

Community Treatment Orders 

Right to Identity- s162 Application to Publish Name 

Media

 

Michael Riley is warm, bright, gentle giant in his late 30’s. He is currently employed at a union and is the loving father of a four-and-a-half year old daughter who starts school this year. While Michael lives, works and is socially engaged in the community, he is subject to a Community Treatment Order (CTO) which has been consistently renewed for 14 years. Michael does not agree with nor does he consent to this order. His diagnosis is one of Schizoaffective Disorder - a diagnosis he rejects.


Michael does not have a criminal record and has no history of violent behaviour. His only contact with the police has been sparked by his CTO on the isolated occasions on which he is essentially arrested on the grounds that he is a danger to his own reputation. At times, these arrests have been carried out with such force that Michael has required hospital treatment (see ‘About Michael’ for the full story). Despite his gentle nature, Michael’s experience at the hands of the police and mental health authorities has resulted in him feeling as though he is being treated like a criminal. This is a common experience for people with mental illness and an ongoing concern for Justice Action. 

Michael’s case highlights how vulnerable a person diagnosed with a mental illness is at the hands of mental health authorities. The broad powers of the CTO take away his right to decide what treatment he wants, as well as making his liberty conditional on compliance with the terms of the CTO (s 57). In addition, a mental health team is able to medicate Michael without his consent (s 57). The power vested in mental health staff to forcibly remove Michael from the community for a breach of the CTO, transport him to a declared mental health facility (s 58) and keep him there against his will (s 61) is alarming. Perhaps most disturbing, though, is the ability of the police to intervene in Michael’s life despite the absence of any criminality.

Any resistance displayed by Michael to the terms of the CTO or the treatment forced upon him is seen as a lack of capacity or insight into what is in his best interests. Such objections are taken as confirmation of his diagnosis and act to reinforce the initial justification for the use of force. The CTO essentially takes away Michael’s ability to make his own decisions regarding his treatment and his life while a failure to comply results in his liberty being taken away.

Outraged at his brutalisation at the hands of the mental health authorities and the systemic stripping away of his fundamental human rights, Michael is prepared to talk about his experiences in order to raise awareness of the problems he has encountered in the mental health system. After years of indignity, Michaels’ frustration finally came to a head in November 2013 when his CTO was again renewed, despite the presentation of an advanced directive that had been put together to provide Michael with a community-based, supportive and therapeutic alternative to the strict and overly intrusive CTO.

He is able to clearly and articulately state his resistance to the abuses of power he has experienced. But even this choice could not be made without a battle. Due to the structure of the Mental Health Act, Michael was required to ask the Mental Health Review Tribunal for consent to use his own name in discussing his experiences – a fundamental right that is taken away under the legislation (s 68). The blanket prohibition imposed by the Act is supposedly in place for the protection of the patient who is assumed to be incapable of fully comprehending the damage they may cause themselves by associating their name with a mental illness in the public sphere. In reality, however, this prohibition, which also applies to Tribunal members, functions to reduce the accountability and transparency of the MHRT’s proceedings (see Right to Identity – s 162 Application for more information).

It is this lack of accountability and transparency that Michael is most passionate about exposing and hopefully reforming. He and Justice Action feel that unless there is a significant change in this area, people who are already at a social and often financial disadvantage will continue to have their rights and autonomy taken away from them with little avenue for effective recourse. People who are diagnosed with a mental illness require support and deserve to have their dignity maintained. Paternalistic, interventionist and overbearing systems are more likely to damage their mental state than help to nurture or repair it.

 

The States Assault of the Mentally Ill- The Case of Michael Riley

 

 

About Michael 

Community Treatment Orders 

Report of Meeting 20.1.14 MHRT and JUSTICE ACTION

Media

  

Michael Riley is warm, bright, gentle giant in his late 30’s. He is currently employed at a union and is the loving father of a four-and-a-half year old daughter who starts school this year. While Michael lives, works and is socially engaged in the community, he is subject to a Community Treatment Order (CTO) which has been consistently renewed for 14 years. Michael does not agree with nor does he consent to this order. His diagnosis is one of Schizoaffective Disorder - a diagnosis he rejects.


Michael does not have a criminal record and has no history of violent behaviour. His only contact with the police has been sparked by his CTO on the isolated occasions on which he is essentially arrested on the grounds that he is a danger to his own reputation. At times, these arrests have been carried out with such force that Michael has required hospital treatment (see ‘About Michael’ for the full story). Despite his gentle nature, Michael’s experience at the hands of the police and mental health authorities has resulted in him feeling as though he is being treated like a criminal. This is a common experience for people with mental illness and an ongoing concern for Justice Action. 

 

Michael’s case highlights how vulnerable a person diagnosed with a mental illness is at the hands of mental health authorities. The broad powers of the CTO take away his right to decide what treatment he wants, as well as making his liberty conditional on compliance with the terms of the CTO (s 57). In addition, a mental health team is able to medicate Michael without his consent (s 57). The power vested in mental health staff to forcibly remove Michael from the community for a breach of the CTO, transport him to a declared mental health facility (s 58) and keep him there against his will (s 61) is alarming. Perhaps most disturbing, though, is the ability of the police to intervene in Michael’s life despite the absence of any criminality.

 

Any resistance displayed by Michael to the terms of the CTO or the treatment forced upon him is seen as a lack of capacity or insight into what is in his best interests. Such objections are taken as confirmation of his diagnosis and act to reinforce the initial justification for the use of force. The CTO essentially takes away Michael’s ability to make his own decisions regarding his treatment and his life while a failure to comply results in his liberty being taken away.

 

Outraged at his brutalisation at the hands of the mental health authorities and the systemic stripping away of his fundamental human rights, Michael is prepared to talk about his experiences in order to raise awareness of the problems he has encountered in the mental health system. After years of indignity, Michaels’ frustration finally came to a head in November 2013 when his CTO was again renewed, despite the presentation of an advanced directive that had been put together to provide Michael with a community-based, supportive and therapeutic alternative to the strict and overly intrusive CTO.

 

He is able to clearly and articulately state his resistance to the abuses of power he has experienced. But even this choice could not be made without a battle. Due to the structure of the Mental Health Act, Michael was required to ask the Mental Health Review Tribunal for consent to use his own name in discussing his experiences – a fundamental right that is taken away under the legislation (s 68). The blanket prohibition imposed by the Act is supposedly in place for the protection of the patient who is assumed to be incapable of fully comprehending the damage they may cause themselves by associating their name with a mental illness in the public sphere. In reality, however, this prohibition, which also applies to Tribunal members, functions to reduce the accountability and transparency of the MHRT’s proceedings (see Right to Identity – s 162 Application for more information).

 

It is this lack of accountability and transparency that Michael is most passionate about exposing and hopefully reforming. He and Justice Action feel that unless there is a significant change in this area, people who are already at a social and often financial disadvantage will continue to have their rights and autonomy taken away from them with little avenue for effective recourse. People who are diagnosed with a mental illness require support and deserve to have their dignity maintained. Paternalistic, interventionist and overbearing systems are more likely to damage their mental state than help to nurture or repair it.

About Michael

HISTORY 

Michael has long been able to manage his own condition, and his own community had no idea that he was classified as mentally ill. It was only after a call by his family to the police out of concern for his wellbeing that he came to the attention of the mental health system. Although they may have believed that they were acting in his best interests, by doing so Michael’s independence and right to make decisions regarding his own wellbeing have been stripped away.

On two separate occasions, quite recently, police arrested Michael for being a “danger to his reputation”. They came to the villa where he is living, handcuffed him and in dragging him out in front of neighbours, using such force that Michael suffered head wounds requiring four staples to close the wound when he was treated at Westmead Hospital. On the second occasion in 2012 they did so in front of a coffee shop he frequents, where neighbours, friends and acquaintances witnessed him being handcuffed and thrown in the back of a police paddy wagon. Until this embarrassment, none of those around him were aware of any mental health issues.

This criminalisation of those who are mentally ill should not be tolerated. The stigma that surrounds mentally ill people has justified abuse of authority and the mistreatment of those who should be supported and protected. Furthermore, regardless of whatever the allegations are or who makes them, the burden of proof lies on Michael to disprove accusations of mental instability. His case throws up in the contradiction of care and coercion.

COMMUNITY TREATMENT ORDER (CTO)

The broad powers of the CTO take away his right to decide what treatment he wants, as well as making his liberty conditional on compliance with the terms of the CTO (s 57). In addition, a mental health team is able to medicate Michael without his consent (s 57). The power vested in mental health staff to forcibly remove Michael from the community for a breach of the CTO, transport him to a declared mental health facility (s 58) and keep him there against his will (s 61) is alarming. Perhaps most disturbing, though, is the ability of the police to intervene in Michael’s life despite the absence of any criminality.

Any resistance displayed by Michael to the terms of the CTO or the treatment forced upon him is seen as a lack of capacity or insight into what is in his best interests. Such objections are taken as confirmation of his diagnosis and act to reinforce the initial justification for the use of force. The CTO essentially takes away Michael’s ability to make his own decisions regarding his treatment and his life while a failure to comply results in his liberty being taken away.

Outraged at his brutalisation at the hands of the mental health authorities and the systemic stripping away of his fundamental human rights, Michael is prepared to talk about his experiences in order to raise awareness of the problems he has encountered in the mental health system. After years of indignity, Michaels’ frustration finally came to a head in November 2013 when his CTO was again renewed, despite the presentation of an advanced directive that had been put together to provide Michael with a community-based, supportive and therapeutic alternative to the strict and overly intrusive CTO.

He is able to clearly and articulately state his resistance to the abuses of power he has experienced. But even this choice could not be made without a battle. Due to the structure of the Mental Health Act, Michael was required to ask the Mental Health Review Tribunal for consent to use his own name in discussing his experiences – a fundamental right that is taken away under the legislation (s 68). The blanket prohibition imposed by the Act is supposedly in place for the protection of the patient who is assumed to be incapable of fully comprehending the damage they may cause themselves by associating their name with a mental illness in the public sphere. In reality, however, this prohibition, which also applies to Tribunal members, functions to reduce the accountability and transparency of the MHRT’s proceedings (see Right to Identity – s 162 Application for more information).

It is this lack of accountability and transparency that Michael is most passionate about exposing and hopefully reforming. He and Justice Action feel that unless there is a significant change in this area, people who are already at a social and often financial disadvantage will continue to have their rights and autonomy taken away from them with little avenue for effective recourse. People who are diagnosed with a mental illness require support and deserve to have their dignity maintained. Paternalistic, interventionist and overbearing systems are more likely to damage their mental state than help to nurture or repair it.

RIGHT TO IDENTITY 

The Mental Health Act 2007 (NSW) s 162 establishes a blanket prohibition on publishing or broadcasting the names of people participating or involved in any way in hearings before the Mental Health Review Tribunal (MHRT), allegedly for the protection of the person to whom the proceedings relate, in this case Michael.

Michael was unhappy with previous decisions of the Tribunal including its November 2013 decision to place him under a Community Treatment Order, sought permission to publicly criticise the decision on the Justice Action website and elsewhere. Part of the contention in allowing Michael to use his name was the determination of a consultant psychiatrist that he could not appreciate the adverse effects on his reputation and future employment prospects of publicising his name. However, Michael successfully argued that not allowing him to publish his name would have a negative impact on his mental health. The Tribunal agreed stating that any negative impact to his reputation would be outweighed by the impact of not allowing him to publish.

Michael sought to publish his name in order to de-stigmatise mental illness, increase public support and to regain his basic civil liberties as recognised in the United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (1991). These include treating people with a mental illness with humanity and respect for their dignity (principle 1), the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate with a view towards preserving and enhancing personal autonomy (principle 9) and a prohibition on treatment without consent, except in very limited circumstances (principle 11).

On 15 January 2014 in the MHRT, Michael won the right to publish and broadcast his own name in relation to two hearings of which he was the subject. 

See the detailed report here.

The state’s assault on the mentally ill: The case of Michael Riley

 

 

About Michael 

Community Treatment Orders 

Report of Meeting 20.1.14 MHRT and JUSTICE ACTION

Media

 

Michael Riley is warm, bright, gentle giant in his late 30’s. He is currently employed at a union and is the loving father of a four-and-a-half year old daughter who starts school this year. While Michael lives, works and is socially engaged in the community, he is subject to a Community Treatment Order (CTO) which has been consistently renewed for 14 years. Michael does not agree with nor does he consent to this order. His diagnosis is one of Schizoaffective Disorder - a diagnosis he rejects. 

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