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Malcolm Baker

Forced Medication For Management Purposes

Contrary to the evidence presented, we lost the latest hearing into whether Malcolm Baker could be forcibly medicated.

Malcolm attended the Mental Review Health Tribunal on the 19th of April 2018 with the support of three members of the Justice Action team. Justice Health brought its team of psychiatrists who were committed to forcibly medicating Malcolm, with no evidence to support the risk of serious harm to self or others as required by the law. It was obvious that they thought they didn’t need any. Also, Malcolm was clearly suffering from side effects of the medication, drooling and unable to form full sentences. The Tribunal agreed that he was in bad shape and expressed their sympathies, however they still gave the order to continue the treatment for another 3 months. 

When the chair asked the psychiatrist for the worst-case scenario if they were to stop medicating him, they responded; “he could become difficult to manage.” It was a clear admission that Justice Health saw its responsibility to help manage the prison rather than to look after the health of its patient. The side effects of the medication were horrendous – clearly poison to his system. 

The culture of mental health in prisons meant that the Tribunal almost always agrees to Justice Health’s requests regardless of evidence. Justice Health agreed that they couldn’t enforce the order in Silverwater prison and would need to move Malcolm back to Long Bay to continue forcibly injecting him.

Justice Health tried to justify its desire to forcibly medicate Malcolm with a misleading 10-page statement suggesting that he had a long history of proven mental illness. Malcolm’s team dissected it and showed that not only did the two psychiatrists at his trial in 1992 say he was not psychotic, they also said he would not be a danger to the community in the future.

In addition, Malcolm demonstrated a successful resettlement in mainstream Nowra prison in 2014, and for long periods before and after without being forcibly medicated. This was for a period of 3 years between 2012-15, 14 months between 2015-16, and just under 2 years from 2016-2018. He had also been held for fifteen years in virtual solitary confinement in Goulburn SuperMax with no stated justification; however, he survived with good humour and stoicism, remaining in contact with his family and Justice Action.

On several occasions Malcolm has been forcibly medicated with varied justifications, such as that others were attacking him, or he had attempted to write a letter to a Senator.  

In three different cases before February 2018, Malcolm was taken before the Mental Health Review Tribunal who proceeded to reject the application by Justice Health for a Community Treatment Order. These cases occurred on 7th August 2012, 30th April 2015, and most recently 24th July 2016.

Before Malcolm’s tribunal hearing on 1st February 2018, the head of his treating team admitted that Malcolm had not attacked anyone nor harmed himself during the 26 years of his imprisonment. No evidence has ever been produced to suggest otherwise. He is a non-violent prisoner.

After the hearing Malcolm gave each team member a warm hug goodbye. He then said, “now I’m just going to go back to my cell, and they’re going to inject me.”  The Justice Action’s team felt their heart break for Malcolm in the wake of this disappointing result.

Malcolm Baker’s case demonstrates the inhumane culture of mental health in prisons. Justice Action will certainly appeal to the Supreme Court. We began the process the next day by requesting the audio transcript of the hearing. 

Malcolm Baker Index Page

Latest summary on Malcolm Baker tribunal hearing

Malcolm Baker's hearing was lost on the 1st of February 2018,the Mental Health review tribunal determine that Malcolm should continue to be detained at Long Bay Prison hospital.  Placing a halt on a series of three previous victories in 2010,2015 and 2016,whereby MHRT found no justification for continuing Malcolm’s forced medication. Given Malcolm’s previous record of non-violent behaviour, the lack of consensus regarding his mental diagnosis, and the absence of any evidence that he was a threat to other inmates, it was surprising, if not completely outrageous, that the MHRT arrived at the decision that it did.

During the hearing, Malcolm was represented and advocated solely by the Justice Action team. The tribunal allocated time for Justice Action to make Malcolm’s case, cross examine health authorities and suggest viable alternate treatment options. Two main legal arguments were presented to the tribunal.

  1. The requirements for involuntary admission, detention and treatment under s 14 of the Mental Health Act 2007 were not met.

Malcolm’s health debate has been disputed for a long period of time. The two most recent medical certificates presented before the Tribunal did not provide a consistent diagnosis. However, Justice Actions main contention was that there was a failure to establish a causal relationship between Malcolm’s mental illness and his two recent assaults. Section 14 of the Mental Health Act 2007 States that there must be ‘reasonable grounds for believing that care, treatment or control of the person is necessary for the person’s own protection from serious harm, or for the protection of others from serious harm’. On one of the medical certificates, it was stated that Malcolm had threatened to harm others. A request was made on the 24th of January asking Justice Health to provide evidence of this. However, the request was ignored and no evidence was provided.

  1. There had been a breach of the Principles for Care and Treatment of Mentally Ill Persons under s 68 of the Mental Health Act 2007.

Requirements under section 68 embrace that people with mental illnesses ‘should receive the best possible care and treatment, the prescription of medicine should meet the health needs of the person and not as a punishment or for the convenience of others.’. In particular, Justice Action drew attention to the side effects of the medication. It was reaffirmed that Malcolm was in blatant opposition to the treatment that he was receiving. Yet, his alleged failure to meaningfully engage with medical practitioners formed the basis of Justice Health’s recommendation that Malcolm should remain at Long Bay Prison Hospital for several more months to ensure that the medication had any “real effect”.

Following the last hearing with the mental health review tribunal on the 1st of February 2018 to which ruled that Malcolm was to continue to forcibly be medicated against his will, Justice Action has consistently engaged in the lobbying of the 12 leading legal and mental health organisations for support for Malcolm’s case. Also maintaining regular contact with Malcolm for updates on his situation. Next hearing with Mental Health Review Tribunal to consider forensic Compulsory Treatment Order scheduled Thursday 19th April 2018 at 12.45pm, at Long Bay Hospital.

Request to Return to Nowra - Still No Action Despite Victory: November 2016

Another win for Malcolm Baker on the 24th July 2016, before the Mental Health Review Tribunal, supported by barrister Ben Fogarty, psychiatrist Yola Lucire and Justice Action team. Despite having defended against and winning the case against forced medication over a year ago, the authorities said the medication would stop him annoying people and make him less vocal. It was illegal, and made him sick. The Mental Health Review Tribunal sat in Long Bay Hospital and found that Malcolm Baker did not pose a serious risk of harm to himself or others, thus there was no reason to hold him in the mental health facility.

Progress has since been made to begin to transition Malcolm Baker back into a correctional facility in his place of classification. At present he is being held at Silverwater Correctional Centre in Darcy 2, a transitional pod of the Metropolitan Remand and Reception Centre (MRRC). According to NSW Justice’s website, ‘Most inmates at the MRRC leave the centre within the first few months of their arrival. They may obtain bail and are released or they are classified and transferred to their centre of classification.’

The situation must be monitored to ensure he is returned to his place of classification. According to the Serious Offenders Review Council, he should remain classified as A2 at the South Coast Correctional Centre. Transition has not always been prompt in the past. Prior to the MHRT hearing Malcolm Baker was held in the mental health pod at the MRRC for 15 months where he was set up to fail by being placed in an unsettling environment with no access to prison employment, education and no chance to create stable and meaningful relationships.

It has been nearly four months since and no action has been taken by the responsible authorities to transfer Mr Baker to his place of classification where he wishes to obtain access to a prison job, education and engage in real relationships with fellow inmates. At the moment, Mr Baker is still being held in a mental health pod at the MRRC. 

Prisoner Malcolm Baker abused by Health Authorities: Report on Medical Watchdogs Failure

In regard to the unjust treatment Mr Baker received throughout his years in a corrective facility and in an attempt to get him transferred to his desired place of classification where he could get access to a job, education and engage in real relationships with other people, our team has constructed a report highlighting the efforts we have made in contacting and informing the responsible authorities of the situation after the Tribunal decision on the 24th of July 2016 has made it clear that he was unlawfully forced medicated. However, despite our persistent attempts, it is unfortunate to report that no discerning response has been received from any of the responsible authorities. 

Background

Justice Action has followed up the case of Malcolm Baker since the Mental Health Tribunal ruling. This decision successfully exposed the concern of sustained abuse Mr Baker has endured, as a subject of forced injections at Long Bay Prison Hospital.  Their failure to respond to our efforts in reaching out demonstrates an evasion of their responsibility to prevent abuse of power within the criminal justice system. This report aims to highlight those responsible authorities whose negligence has clearly been endemic to prison health culture.

Read more

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.

Read more

‘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?

 

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