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Triumph at the Tribunal - 27/05/15

Mental health consumers have won another battle against the use of forced medication. Kerry O’Malley is free of the label at last. But she was only one of fifteen thousand people in NSW currently having medication enforced under a CTO, being brutalised and degraded by the health system. They may or may not be mentally ill, and may never have been dangerous to themselves or others as required by the law but the forced injection is the only expression of "care". See photos (below) after the case and YouTube interview with Kerry.

Legal aid was refused, so Justice Action with Dr Yolande Lucire assisted in the representation of Kerry O’Malley, a long time victim of Community Treatment Orders (CTO). The Tribunal rejected the Health Dept application. See JA analysis of CTOs. Kerry and her sister Margaret now want to help stop this abuse generally, and for her case to be a public example. She will be writing a book about her experiences.

The Mental Health Review Tribunal (MHRT) met to discuss the possible implementation of a new six-month order to enforce the use of Epilim, an anti-epileptic drug, on Kerry. She says it makes her sick, caused bleeding and lack of energy. Other drugs had induced depression and a death wish. Kerry also felt that such an order degraded her. She preferred to choose her own doctor. She had family, friends and support she trusts and wanted to be left alone by the Health system.

Kerry O’Malley’s case reflects the many injustices individuals face from Health Services, the MHRT and Legal Aid. Kerry approached JA to assist her to fight against the order after her application for Legal Aid was refused. The lack of legal representation for individuals in this situation represents a serious failure. A Community Treatment Order gives psychiatrists absolute power over the patient’s body and brain; informed consent to medication flies out the window.

William Pitt the Elder, Earl of Chatham and British Prime Minister from 1766 to 1778, who said in a speech to the UK House of Lords in 1770:  "Unlimited power is apt to corrupt the minds of those who possess it"

JA supported Kerry through the development of her case and the tribunal hearing.

In preparation, the Tribunal insisted that we attend in Penrith at the Nepean Hospital via videoconference rather than physically in the hearing at their headquarters in Gladesville Hospital. They argued that this was necessary as: “The setup of the facilities here at the Tribunal are not conducive to having a number of people attend” and later “to assist with the smooth running of the hearing”. This is hardly appropriate when a Tribunal Hearing is supposed to be open to the public. 

This use of an electronic hearing, distances the decision makers from the humanity of those over whom they assert very personal power and impose their reality. They control physical health and brain functioning using state enforcement. JA insisted on physical attendance at the public hearing as is Kerry’s legal entitlement. We believe it is vital that the Tribunal members retain their humanity and recognise that they are wielding great power over other people. This issue was again raised during the hearing, when the video feed at Penrith was interrupted, with Margaret stating that the tribunal became very impersonal. 

In a detailed report, psychiatrist Dr Yola Lucire analysed the proposed medication’s potentially fatal effects already in evidence. She pointed out that the drug Epilim was “not approved” for any condition with which Kerry had been diagnosed, She reported on Kerry's past adverse drug reactions, some of which had been near fatal. She pointed out that at age sixty-five, the relative risk of death in persons taking an atypical antipsychotic is 70% higher than in persons not taking these drugs. She also pointed out that Kerry had never met the criteria for bipolar mania or for schizophrenia, yet she was being treated repeatedly with the drugs 'off label' which means that they had not ever been shown to be effective for medication-induced or stress-related problems and had never been approved for those conditions.

The Tribunal questioned Kerry herself, her sister Margaret and the Health Dept case manager Victor Borg. No evidence existed of a risk of serious harm to herself or others, despite that being a necessary condition for the CTO. According to Kerry it was a burden to keep these appointments as there had been little useful contact with the Health Dept, no useful psychiatric support or counselling, and no continuity of Case Manager.   

The tribunal concluded to dismiss the Health Dept application for a CTO. 

They determined that:

  • Kerry appeared to be symptom-free at the time of the hearing and any possibility of relapse (medication induced!) would not be catastrophic
  • The CTO was creating antagonism for Kerry with her doctors and caseworkers rather than benefit
  • There is family support who were willing to encourage treatment if needed as well as a private psychologist
  • The CTO, on balance, was less likely to assist her

Although this case was a success for Kerry and her family, it is always a fight to ensure cases before the MHRT are treated fairly and in the best interest of the individual. CTO’s cause the stigmatisation and disempowerment of individuals despite the stated encouragement of recovery principles by the MHRT.

Although some individuals such as Kerry argue against their orders, most are entirely powerless, unrepresented and end up in positions where they no longer make decisions for themselves, or are too sedated to know what is going on. The lack of legal aid compounds this heavy-handed injustice.

By reinforcing the practice of monitoring, avoiding and fearing mental health consumers, CTO use not only increases public support for legislation but also deters the mentally ill from receiving voluntary help and treatment.

Family, friends and voluntary professional support was available for Kerry, yet the Health Dept pursued its normal approach of wanting total control over her medications failing to recognise that all her disclosed breakdowns had occurred after general anesthetics or while Kerry was taking or withdrawing from enforced medications.

Unlike Dr. Lucire, who signed the Expert Code of Conduct to give evidence as mandated for all tribunals, NSW Health was represented by a nurse. If  doctors in NSW Health had to produce evidence in a Tribunal case and provide the opposing expert with records, they might think twice about making applications. Unless a person has the means and opportunity to provide a contrary opinion, a Mental Health Review Tribunal can be seen as a rubber stamp and a sham procedure.

 

 

Townsend Cell Killing

Wednesday 17 May 2017

Media Article

Justice Action recently received correspondence from a prisoner at Long Bay Correctional Complex regarding the death of a prisoner in custody. The case is an example of the need for single cells in all prisons for all prisoners, so that people can retain some privacy and safety in prison.

The case in question involved the alleged murder of 71-year-old Frank Townsend in the Kevin Waller Unit of the prison. John Walsh, who was the cellmate of Mr Townsend at the time of his death, has been charged with his murder. Mr Walsh, who is currently serving a life sentence for a triple murder, is alleged to have murdered Mr Townsend in their shared cell in January 2017. According to a prisoner in Long Bay Correctional Complex, the circumstances in which this alleged murder occurred could have been avoided had Mr Walsh been kept in a single cell, and not been forced to reside with a cellmate.

According to the correspondence received by Justice Action, a psychologist at Lithgow Correctional Centre had assessed Mr Walsh, before he was moved to Long Bay, as being a “serious threat” to any cellmate he may be placed with. This information was included in his file, so that in the event of his being moved to a different prison, he would be kept in a single cell. It is also apparent from this source that Mr Walsh had, prior to the alleged murder, been internally charged with attacking inmates. Our source also states that Mr Walsh told staff at Long Bay Correctional Complex that, were he to be placed with a cellmate and not in a single cell, he would “kill him or be killed by him.”

Justice Action’s source further goes on to indicate that another former cellmate of Mr Walsh had been removed from their shared cell two days prior to the alleged murder due to “John’s erratic and aggressive behaviour for fear that John would attack/kill him.” Despite these issues, and Mr Walsh’s apparent admission that he would kill any cellmate placed in his cell with him, he was continually made to share a cell with other prisoners. In allowing other prisoners to be placed in a cell with Mr Walsh, Long Bay Correctional Complex was placing these prisoners at risk and placing no importance on their safety.  

While Mr Walsh has been charged with the murder of Mr Townsend, there has been no discussion of the responsibility of the Department of Corrections and the prison in regard to their duty of care in this case. By not allowing prisoners the option to have their own cells, they are depriving them of their privacy and their safety. According to a Community Justice Coalition report on cell sizes, every prisoner should be entitled to their own personal space to ensure that their right to privacy is actualised.[1] Further, the Standard Guidelines for Corrections in Australia 2012 states that accommodation should “respond effectively to the actual needs and risk status of the prisoner.”[2] It is evident in this case that the accommodation provided by Long Bay Correctional Complex did not correspond to Mr Walsh’s risk status or Mr Townsend’s safety needs. The Department of Directions appeared not to care despite the fact that it was warned.


[1] Community Justice Coalition, ‘Standardisation of Cell Sizes’ (2016), 3.

[2] Standard Guidelines for Corrections in Australia 2012 s 2.4.

NSW Auditor: 75% Prisoners without Programs

This report was presented to the NSW Parliament by Ian Goodwin, Auditor-General, on the 3rd of May 2017. It found that 75% of prisoners identified as being in need of a program did not receive one by their earliest parole release date. Consequently, they were held in custody for longer than necessary, and in many cases, being released with little to no intervention to address offending behaviour. 

Other key findings included:

  • Program resourcing is insufficient to meet current prisoner demand
  • The accessibility of programs is limited for certain groups, particularly sex offenders requiring moderate intensity programs and serious violent offenders
  • The effectiveness of programs in reducing reoffending behaviour has not been established in the context of NSW

Recommendations:

  • A more systematic approach to data is needed to adequately assess program effectiveness
  • Resourcing benchmarks must be established to meet demand for programs
  • Prison program performance indicators should be established, and monitored and assessed quarterly
  • There should be an independent evaluation of program effectiveness   

History of the Computers in Cells Project

Timeline:

21 April 2017 - Corrective Services NSW Responds to Community Justice Coalition Media Release:

From the Sky News article: "CSNSW said the importance of giving inmates access to computers for education and rehabilitation was recognised. 'Under the prison bed expansion program, CSNSW is also looking at ways of incorporating technology into new correctional centres and expansions,' the department said in a statement. It is incrementally rolling out technology but adopted a 'cautious' approach by prioritising community safety, the statement added"

21 April 2017 - Major News Outlets Report on Computers In Cells:

Following the media release on the 20th of April, a number of major news outlets covered the computers in cells issue. The story was covered on page 15 of the Daily Telegraph, as well as appearing digitally on the Sky News, News.com.au, 9News and The Australian amongst other outlets. 

20 April 2017 - Community Justice Coalition Publishes Media Release "NSW Needs Computers In Cells:

The president of the Community Justice Coalition, The Hon John Dowd AO QC, publishes media release highlighting the importance of having computers inside prison cells, as well as criticising the NSW government for "dragging its feet" in relation to the issue. 

13 March 2017 - Justice Coalition recieves Correspondence from Northern Territory Legislative Association:

Our friends at Community Justice Coalition received correspondence from Natasha Fyles of the Northern Territory Legislative Association, after she asked The Department of the Attorney-General and Justice to investigate its ability to support a web-based domestic violence program.

11 February 2016 - Correspondence from Secretary for the Premier:

The Parliamentary Secretary to the Premier, Catherine Cusack, responded on Baird’s behalf, expressing her appreciation for JA’s proposal. She advised JA that the issues raised fall under the responsibility of David Elliot, the Minister for Corrections, and that JA’s letter would be forwarded respectively.

3 February 2016 - JA Contacts Mike Baird about Online Counselling Proposal:


JA sent a letter to Premier Mike Baird, requesting his urgent attention, support and acknowledgement of our online counseling proposal. JA urged Premier Baird to read the information provided.

14 January 2016 - Liasion with Acting Commissioner for Corrective Services NSW :

JA received an email from Acting Commissioner Luke Grant stating, “Corrective Services NSW considers an online counseling service would not be appropriate without adequate support and engagement with mental health staff.”


15 December 2015 - Proposal Rejected by the Legislative Council:

Received correspondence from Natasha Maclaren-Jones of the Legislative Council, informing us that online council servicing in prisons “falls outside the scope of the committee’s terms of reference for the inquiry into the security classification and management of inmates sentenced to life imprisonment.”

14 December 2015 -Liason with Minister for Corrective Services:

Followed up on our legislative meeting by sending our counselling proposal to David Elliot, Minister for Corrective Services.  

23 November 2015 - Oral Presentation to the NSW Legislative In quiry:

On Monday 23rd November 2015, Justice Action presented orally to the NSW Legislative Inquiry on the security classification and management of prisoners sentenced to life imprisonment. The Committee’s terms of reference for the Inquiry refer to the provision of rehabilitative programs and services to lifers, and the need to report on the management of such people. During the Inquiry we put forward a proposal to introduce online counseling services in prisons for both “lifers” and all other prisoners.

Justice Action offered to provide a free pilot online counseling service. This was rejected, on the grounds that ‘mental health staff in counseling is the only means of intervention’.

29 January 2015 - JA liases with St. Vincent de Paul Society:

Justice Action sent their online services in prison cells proposal to John Falzon of the St. Vincent de Paul Society, our aim being to begin a relationship with a major national organisation.

27 October 2014 - Trial for Computers in Cells at South Coast Correctional Centre:

JA received an email from the Office of Hon Brad Hazzard MP that a trial of computers in cells at South Coast Correctional Centre would begin in November 2014. We were informed that computers in cells would expand to other prisons dependant on this trial. Mr Hazzard’s office also stated that in-cell connectivity was deemed cost ineffective in the majority of NSW prisons. 

14 July 2014 - Computers in Cells Proposal sent to Spokesperson for Justice and NZ MP:

JA sent a modified and expanded “Computers In Cells” proposal to Associate Spokesperson for Justice and New Zealand MP Raymond Huo. The twenty-three paged report focussed on online counselling in prison cells as a cost effective way to reduce crime. We received no response.

11 July 2014 - Proposal for Online Counselling in Cells sent to Corrective Services NSW:

In collaboration with anti-violence NGO Enough is Enough, JA designed another proposal for online counselling in cells. On this date it was sent to Corrective Services NSW Commissioner Peter Severin. We received no response.

23 January 2014 - JA meets with Department of Corrective Services :

The Co-Ordinator of JA and three team members held a meeting with Department of Corrective Services officials Luke Grant and Joy Gault. This was initiated after an email from Peter Severin dated 23rd December 2013, who suggested a consultation in relation to computer communication. Our meeting discussed strategies for implementing computers in prison NSW-wide, as well as potential costs and sources of funding. Meetings with Luke Grant continued throughout 2014, on May 2nd and July 29th.


8 December 2011 - Support from NSW Teacher's Federation :

JA receives confirmation of support on their “Computer in Cells” proposal from the NSW Teachers Federation. 

16 November 2011 - Justice Action Produces Computers In Cells Implementation Strategy:

This draft implementation strategy outlines key focus areas as well as gauging support from key stakeholders including political parties. 

17 October 2011 - JA's Responds to National Cultural Policy Proposal:

JA responds to Mr Simon Crean’s 2011 National Cultural Policy Proposal. The Proposal recommended, “…encourage the use of emerging technologies and new ideas that support the development of new artworks and the creative industries, and that enable more people to access and participate in arts and culture.” In reply, JA asked Mr Crean to adopt their “Computers in Cells” initiative, forwarding the February proposal of the strategy to Mr Crean himself.

25 Feburary 2011 - Computers In Cells Recieves Strong Support From The Greens Party:

David Shoebridge of The Greens pledges support for the computers in cells project. 

February 2011 - Follow-up to Paper Published 
:

JA follows up the discussion paper with a proposal paper for future distribution. It outlines the reduction in recidivism and benefits in inmate education and employability stemming from computers in cells.

25 November 2010 - 'Computers in Cells' Paper Published 
:

JA publishes ‘Computers into Cells’ Discussion Paper.

The paper proposed the provision of computers in cells, noting the educational, legal, and social benefits, while showcasing successful examples in the ACT and Victoria. It also addressed Corrective Service’s concerns regarding illegitimate use and security issues, noting that these issues are easily solved by software packages such as PrisonPC, available at the time.

30 June 2006 - Committee for Project Established:

A project steering committee is established to ‘develop standards, processes and systems under which inmates will be granted controlled and secure access to computing technology.’ The project was aimed to ‘maximise the use of computing technology by inmates.’ It is said the project is to proceed in a stagedmanner.

Corrective Services indicates their consideration of strategies to allow access to computers in cells, ‘particularly technology implementation at the new Wellington Correctional Centre and the proposed South Coast facility.’ 

November 2005 - Lobbying and Meetings:

JA works with Kingsford Legal Centre to begin lobbying government and corrective services for computer access in cells.
 Meetings are held with the Minister for Justice the Hon. Tony Kelly, and Corrective Services. 

5 April 2001 - Motion for Acceptance of Computers:

The Shadow Minister for Community Services passes a motion calling on the government ‘to accept donations of computers into New South Wales prisons from private donors, where these computers will be used to promote rehabilitation of inmates and to reduce the rate of recidivism.’

The Opposition found it ‘laughable’ that 113 surplus department computers are enough to satisfy the needs of 7,500 prisoners. They suggested that Corrective Services needed leadership who ‘understand that computers can help,’ and looked for solutions, not problems with proposals to introduce community computer donation schemes.
They note their support of JA’s basic message that computers are required to ‘give inmates opportunities to become better people.’

13 September 1999 - Computers Revoked:

Commissioner of Corrective Services orders that donated computers be removed. The corrective services minister and the commissioner cite several reasons: the Inmate Private Property Policy, millennium bug compatibility, and the availability of hard copy education resources. It is suggested by Corrective Services that providing more computers will be done with their own surplus machines in a stagedmanner.

August to September 1999 - Donation of Computers
:

JA delivers donated computers from community to jails for use in wings. Computers are initially accepted and some installed.

25 June 1998 - JA Proposes Computers in Cells
:

JA proposes computer repair and return program in jails.

JA Report 2016

2016 in Review                                                                                                                 

2016 has been yet another busy year for the Justice Action team. Click here to read a report on the work we've done, and check out some photos of the highlights below.

Christmas Party

On Friday 16th December Justice Action had their annual Christmas Party to celebrate our achievements for the year.
The Christmas Party brought together the people we work for and represent, the sounding boards for our ideas, the people that offer us assistance and expertise and our very own interns.
See the festivities below.

 

Letter sent to the Community Reference Group

To Community Reference Group Members,

Apologise for the mistype in the subject line of the earlier email, this is the finalised correspondence.

We want to draw your attention to the case of Mr Malcolm George Baker min 221029 and what occurred at his recent Mental Health Review Tribunal Hearing on 14/7/16. We ask you individually, and as representatives of your organisations to confront the culture and abuse of power by health personnel.

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, which in our opinion indicates a serious cultural problem.
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.

Please find our media release below the email.

Again, we ask you individually, and as representatives of your organisations to confront the culture and abuse of power by health personnel. The intention of helping prisoners has been lost within the Community Reference Group (CRG). Many meetings haven’t happened, have been postponed or have become irrelevant. In the past prisoners were able to attend meetings as equal participants and call matters to your attention in order for the CRG to respond adequately and efficiently. This no longer occurs and signifies an abandonment of your organisation’s original constitution.

What has been your response to the findings in The Full House Report? What actions have you insisted be taken to address the worsening conditions of Prisoner Health Services where less than 50% of appointments happen.

We believe any conflicts of interest, be they in the form of financial support from Corrective Services NSW, the Health Department or otherwise should be disclosed and those compromised should reconsider their positions on the CRG.

It is clear that there are structural problems within the CRG. We once again ask for Justice Action to be on the CRG or explain why you do not support our involvement. We were part of the originating team and were told we were essential to its operation.
Please acknowledge upon receipt either confidentially or openly.

Regards,

Brett Collins
Justice Action Team

Our Strategic Plan

Malcolm Baker, a 67 year old Australian prisoner, is being subjected to forced medication and 15 years of solitary confinement, 23 years after being given a natural life sentence. Tracy Brannigan died of drug overdose due to negligence by prison authorities, just three months shy of her possible release. Over 13 years after being found not guilty of manslaughter and malicious damage to property by reason of mental illness, normally subject to a 3 and a half year sentence, Saeed Dezfouli is still being held indefinitely while being forcibly medicated.

Justice Action stands beside each of them, and without such support, these people would be isolated without hope. These situations illustrate the ways in which the justice and mental health systems marginalise and degrade people. It is struggles like these that provide context for the fight for prisoners’ rights.

The prisoner movement traces its history back in Australia to colonisation, when it existed as a penal colony. The slavery and overall degradation of human beings that occurred prompted the rise of the prisoner movement. Justice Action exists as a part of this movement and has fought to target abuses of authority against vulnerable citizens. Justice Action is especially focused on those who are most disadvantaged, such as prisoners and mental health consumers and patients. In addition to its work defending human rights, Justice Action aims to improve the social and mental health of the community and advocate for methods of reducing recidivism.

As an independent non-governmental organisation, Justice Action has the important distinction of being self-funded through the social enterprise Breakout Media Communications, which strengthens its ability to perform its watchdog functions. Our team comes from all walks of life, drawing its lifeblood from prisoners, ex-prisoners, and their families, who bring their concerns about prison to the public sphere. It also relies on the work of students and community members, who provide their passion for social justice and their desire for learning, as well as on lawyers and academics, who lend their skills and expertise. Justice Action believes that meaningful change in Australia’s criminal justice and mental health systems can only be achieved through the free exchange of communications and greater community involvement, with all members of the community taking responsibility.

The organisation works in many ways to effect social change. For example, to end the social exclusion faced by those in prisons and locked hospital, Justice Action launched iExpress in 2013, the world’s first prisoner social media system. iExpress empowers people in prisons and forensic hospitals by reducing the divide that exists with the outside world, and providing a means for social integration prior to release. Free services, such as personal emails and online profiles, provide community intergration. The service also serves as a creative outlet by allowing prisoners to showcase their artwork and musical compositions, which encourages positive communication and expression.

While the rhetoric of rehabilitation is active participation, prison culture conditions people to wait for time to pass and become submissive. In response, Justice Action has advocated for prisons to implement online counselling through computers in cells as a cheaper and more effective therapy. Online counselling is a stable service that is not affected by transfers and can continue to be accessed long after incarceration; building counsellor-patient relationships and promoting psychological health. Voluntary online counselling in cells encourages self-management and active use of cell time which are skills which are important upon release and in preventing recidivism. Justice Action has also produced a research paper on the issue, Computers in Cells, presented at the 15th International Conference on Penal Abolition in Canada. This paper generated widespread interest from authorities both in Australia and abroad, and subsequently helped gather support for a roll-out of this program in Australian and New Zealand prisons and mental health hospitals.

Justice Action has also defended prisoners’ right to storage of their possessions during incarceration, as proper storage is essential to reintegration. The loss identification documents poses obvious practical problems, while the loss of letters, photos, and family heirlooms have less tangible but no less real consequences. Given that prisoners often do not have a home or job to return to and often have lost their connections to the outside world, the storage of belongings has become an important factor in ensuring a high quality of life. Assisting the NSW Prisoners Aid Association, Justice Action advocated for their continued funding as a storage facilities provider, which has allowed them to continue offering services to prisoners. This campaign has been rolled out to other states, territories, and New Zealand in 2015 to ensure the right to storage is respected widely.

Justice Action’s work does not stop at research. It also works on a case-by-case basis to uncover and rectify abuses of authority. After three Supreme Court cases, Justice Action experienced success in the area of mental health, particularly in regards to the issue of forced medication. These issues include defining the role of hospitals, the limitations of tribunals and holding the public accountable. Justice Action presented our publication Mad in Australia at the Ninth National Forum on Reduction and Seclusion and Restraint Forum, voicing the detrimental effects of forced medical intervention.

Justice Action also publishes JUST US, the only newspaper in Australia and New Zealand distributed to people in prisons and hospitals. JUST US is crucial to Justice Action’s continued engagement with the community it serves. Showcasing art, poems, articles and letters from the inside, along with news and information on prisoner and patient rights, JUST US continues to keep our audience informed about their rights and pertinent issues in the criminal justice system. The most recent JUST US publication provides statements from political parties regarding criminal justice issues and reminds people in prisons and hospitals that they have the right to vote in elections, empowering them to be enaged in the community.

Justice Action prepared a questionnaire working in a coalition to examine political parties’ responses to a spectrum of prison-related criminal justice issues prior to the 2015 election, allowing an open dialogue between political parties and the community in bipartisan policy development. Some issues raised include those pertaining to Indigenous Australians, women, juveniles in custody, bail, and education and training in custody. The role of Justice Action is a stance of challenging authorities and the tendency to abuse those they control.

Justice Action works for the rights and welfare of prisoners, mental health patients and their families, expressing the views of the prisoner community. With the support and participation of the wider community, Justice Action’s work will be effective.

 

forcedmedication

Launch UN Prohibition Campaign

Call to Action to Support UN Treaty on the Abolition of Forced Treatment

“We are forced to be compliant, broken down, life and energy sucked from our essence. They create sedated, manageable people not fit to function”
– Saeed Dezfouli

Justice Action supports the Committee on the Rights of Persons with Disabilities campaign on the Absolute Prohibition of Forced Treatment and Involuntary Commitment. The launch of the campaign on March 29, 2016, will coincide with opening day of CRPD 15th session being held at the United Nations in Geneva.

Justice Action has highlighted this issue over many years through our work with Kerry O’Malley & Saeed Dazfouli. Forced medication undermines the CRPD (especially Articles 12, 14, 15, 17, 19, 25(d), 28), General Comment No. 1 on Article 12, and Guidelines on Article 14. Justice Action supports the CRPD Committee’s approach, which can be summed up as a paradigm shift from procedural safeguards (out-dated paradigm in mental health laws) to absolute prohibition (new paradigm in CRPD).

Introduction

The United Nation’s (UN) Convention on the Rights of Persons with Disabilities (CRPD) represented a breakthrough in the development of human rights law, reaffirming the basic and inalienable human rights outlined in the Universal Declaration of Human Rights (UDHR) extend to all individuals. It provides persons with disabilities, such as mental illness, a range of fundamental rights and guarantees in all aspects of their life, including the principles of non-discrimination, autonomy, inclusion, and freedom to make their own choices. The continued forced medication of mental health consumers should be abolished as it undermines the inalienable rights outlined in the CRPD and causes physical and psychological harm to individuals.

Article 12 of the CRPD, reaffirms equal recognition before the law for all individuals and their right to access support to exercise their legal capacity. This right is often denied for people with disabilities, and replaced by substitute decision-making regimes including mental health laws and tribunals. This has resulted in individuals being deprived of their fundamental rights as outlined in the CRPD, including the right to give consent to medical treatment, the right to liberty and security, and the right to freedom from torture or inhumane punishment.
Justice Action supports the CRPD Committee’s approach to forced medication, which is a paradigm shift from procedural safeguards to absolute prohibition, to ensure the basic and inalienable rights of mental health consumers are protected.

CRPD: Forced Medication

The importance of informed consent is outlined in Article 25(d) of the CRPD and General Comment No. 1 on Article 12 (at 41). It requires all health and medical professionals to obtain free and informed consent before administering any treatment to any individual. Despite the Australian Government stating that no individual in Australia is subjected to medical/scientific experimentation without free and informed consent, this right is denied to some mental health consumers through forcible medication. A report published by Justice Action in 2015, entitled Mental Health Accountability and Chemical Restraint: Research and Recommendations, highlighted the importance of mental health consumers having a choice in the provision of their treatment to ensure greater patient involvement. The report highlighted the unequal bargaining power that currently underpins the relationship between the medical practitioner and consumer. By disagreeing with physicians and refusing treatment, “consumers run the risk of being clinically judged by psychiatrists as possessing a lack of insight.” Appallingly, this can be used as a justification for additional coercive treatment and can even result in denied release. Consequently, consumers remain fearful of opposing involuntary treatment due to the negative ramifications.

The UN General Assembly’s Report of the Working Group on Arbitrary Detention similarly advocates for the abolition of forced medication. It instructs judges to apply absolute prohibition of “involuntary committal or internment on the grounds of the existence of an impairment or perceived impairment” (Principle 20, Guideline 20). The report outlines the state’s responsibility to protect people with disabilities from violence, abuse, and ill treatment, and reaffirms the importance of informed consent when administering medical treatment to mental health consumers.
Furthermore, the forcible medication of individuals is abusive and a cruel, inhumane treatment, with individuals deprived of their right to security and liberty. These concepts are also addressed in the CRPD (Articles 14-17). Justice Action works with numerous individuals who are forcibly medicated, and the experiences of these individuals highlight the inhumane and abusive nature of such practices. Saeed Dezfouli is one such forensic patient who has been subjected to forced medication since 2002, often being restrained seven nurses when being injected. On describing his experiences Saeed has stated; “We are forced to be compliant, broken down, life and energy sucked from our essence. They create sedated, manageable people not fit to function.” These experiences highlight the cruel and inhumane treatment and abuse that occurs during forcible medication, its violation of the CRPD (Articles 14-17), and the need for the absolute prohibition of such practices.

Harm Caused by Forced Medication

The use of forced medication if often justified as a response to the personal harm a mental health consumer may inflict of himself/herself. However, consideration is not given to the damaging consequences of forcible medication.
Treatments for mental health consumers often result in a variety of negative physiological side effects. Forcibly medicated individuals are unable to refuse treatment and are thus subject to these side effects. For example, the anti-psychotic medication Clozapine is an effective anti-schizophrenic, however it can cause side effects including weight-gain, drooling, constipation, muscle stiffness, sedation, tremors, and hyperglycaemia (high blood sugar levels). These side effects can lead to other health problems including diabetes and obesity, further increasing the harm experienced by forcibly medicated mental health consumers. Justice Action has received a large number of complaints regarding the physical side effects caused by medication they are forced to take. Speaking to Justice Action of her experiences under a Community Treatment Order, Kerry O’Malley stated the medication she was forced to take caused bleeding and a significant lack of energy.
Justice Action also published a report analysing studies relating to forced medication to determine its effects on personal harm. Studies demonstrated that forcibly medicating patients was connected with psychological discomfort, anger, panic, and sadness in patients, significantly impacting their personal well-being. A Scandinavian study by Kaltiala-Reino, Laippala, & Salokangas also noted the negative psychological effects of forced medication, stating "coercive treatment arouses negative feelings in the patient, creates negative expectations about the outcome of treatment, and fails to result in a trusting relationship between the patient and the professionals" (p. 318). In other studies, violent or non-compliant patients were subjected to seclusion techniques as punishment. This resulted in patient’s humiliation and social alienation, further impacting their psychological and social well-being.
The use of chemical restraints (sedatives) in forcible medication practices can have disabling effects that mimic symptoms of mental illnesses, leading to medical officers to reaffirm their diagnosis and continued forced medication. The repeated and long term forced medication also causes the individual to become submissive to the coercion and accepting of the practice as an unavoidable part of life. This increases the risk the individual will not be a meaningful contributor to society upon release, but a chronic mental health patient. This side effect is a direct violation of the Article 26 of the CRPD – the right to rehabilitation and habilitation. As mentioned, the practice of forced medication does not provide mental health consumers with the ability to be rehabilitated and return to the community as a functioning individual.

Conclusion

Forced medication seriously offends both international and domestic law. Mental health patients possess the same fundamental human rights as all other individuals. Article 12 of CRPD reinforces that all persons with disabilities are equal before the law. Despite this, the aforementioned evidence highlights the denial of legal capacity to persons with disabilities by undermining their fundamental right to liberty. As such, there is an urgent need for change in the administration of treatment for mental health consumers, as they are unjustly impacted by the broad discretionary power allowing physicians to force vulnerable patients to take medication, as they deem appropriate. Coercive medication removes choice, freedom and patient involvement within the mental health system, leaving open the potential for abuse of trust by physicians. Justice Action supports an absolute prohibition on forced medication. The abolition of this practice would instil greater agency upon consumers, significantly reduce the opportunity for physicians to exploit vulnerable patients, and drastically improve the well-being and outcomes for mental health consumers.

Home Detention

Home Detention is an alternative to incarceration where the offender serves their sentence in a confined area at an approved residence for a specific period of time, pursuant to the Crimes (Administration of Sentences) Act. Although often given to offenders with less serious convictions, home detention has some serious problems. These include the shift of the financial burden from the state to families, and the net-widening effect whereby prisons fill up regardless of such diversionary programs. In addition there are significant emotional and psychological pressures placed upon the families who are forced to accommodate the roles of both prisoner and prison officer.

Click here for the full report

Comparing Zoos and Prisons: Worse Than Animals

Media Release Monday November 23, 2015 

A unique analysis launched today reveals that Taronga Zoo's gorillas are legally given twenty four times more space than people held inside the private Parklea prison. They are provided natural habitats and have enforceable rights. Additionally NSW Premier Mike Baird has pledged $57 million to improve the facilities of Taronga Zoo as part of the government’s ‘Restart NSW’ infrastructure project. A key part is to upgrade the gorilla enclosure.  

Download analysis here. 

The recent Inspector of Custodial Services 'Full House' Report declared 'the state treats inmates in a way that denies them a modicum of dignity and humanity.' At a later forum prison authorities questioned the need for each prisoner having 5.5 square metres space in a cell held for 18.5 hours a day, stating that there is 'no science behind the existing public health regulation' and received exemption from the Health Minister. There is no mechanism for enforcement or punishment for breaches.

That publicly exposed lack of enforceable standards in prisons was the stimulation for this unique analysis, not previously undertaken anywhere, comparing conditions for people locked in prisons with animals in zoos.

The difference in treatment is because animals in zoos are deliberately exposed to the public eye, whereas people in prison are isolated away from the public eye where their humanity is denied, and they are vilified as criminals. Their conditions in cages and cells are not visible, their anguish as people is not seen, and therefore the administration is not accountable.

This report recommends accountability through media access to the prison system. It observes that degrading treatment rather than assistance causes crime. It proposes that overcrowding due to the 12.5% yearly increase of the prison population should cease by adopting alternative sentencing measures. 

We call upon NSW Premier Mike Baird to reallocate the Taronga Zoo funding to the NSW prison system. Long promised computers in cells with online counselling to lessen crime should be prioritised before gorillas’ luxuries. Political grandstanding with tough on crime policies like chemical castration and lifers’ rights are now seen as public jokes.

Victims

What is a victim?

A victim is someone who has suffered a loss, possibly having been harmed as a result of some accident, crime or other action. The loss they suffer may be physical, through some external injury to the body. The loss may also be mental or intellectual, perhaps through bullying or other verbal attack, or through a loss of reputation. Finally, victimhood may come from financial harm, such as through stealing, destruction of property, or a stock market crash. In common, a victim is “one who has no choice”.[1] 

All people are ‘victims’ to some degree, as we all have some exposure, whether limited or great, to grief and loss.

The misfortunes or poor treatment of victims can cause them to feel helpless, and isolated, and they grieve for their harm and the life they once led. Some may move on from their experiences, finding solace in hard work, individual betterment, or even spirituality and religion. Others may become depressed, obsess over their damaged lifestyle, or develop a victim mentality. The scars, physical or otherwise, may never fully heal; they bear the burden of their victimhood for the rest of their lives.

In many cases, the severity of the harm or injury may cause flow-on effects to a person’s family and wider society, who must learn to cope with the change and assist in the victim’s attempts to normalise their lifestyle. Community support, through compensation, and development programs, can help them to reconcile themselves to the injury they have suffered.

Victims of crime

Every crime involves commission of a legal wrong, and involves a perpetrator and one or more victims. Crime victims are people who have been “threatened, harmed or killed, by another person”.[2] The central focus in the aftermath should always be community compassion, recognising the experience of the victim of the crime. The needs of the victim should be addressed first before the offender.

This should primarily involve giving the victim the health or social support they need to deal with the damage they have suffered, and generous financial compensation to indicate community care. The state then takes over the role of the harmed through the justice system to deal with the offender. Victims assist by publicly giving evidence in court. Coronial hearings ensure justice is seen to be done for the whole community. This process depersonalises the punishment, removes the desire for personal vengeance, and focuses on ensuring future safety for all in our civilised community. The maximum punishment is imprisonment and necessarily consequential losses. Revenge beatings or torture are illegal. Differential treatment of prisoners is only permissible as a security issue rather than relating to the unpopularity of the crime or offender. It is significant to note that often, the offenders of crimes are victims first.

Victims of crime may have a variety of responses in the short or long term to their harm. Most people will experience stages of disbelief, shock, sorrow, grief, numbness and anger.[3] Some may return to a regular lifestyle and move beyond the event. Others cannot forget the experience, and the heinousness of the crime increases the pain of the memories. The suffering caused by a crime “changes the lives of many more than the direct victims”.[4] Hence this issue is no less poignant for families of victims of violent crime, who through the loss of a parent, child, sibling or other relative will also carry painful memories of the experience.

It is the responsibility of the community to support victims and their families so that they may deal with their grief and loss. The focus should be on restorative justice if possible; reconciliation of the victim with their injury, reconciliation with the community who has helped them to cope, and reconciliation with the perpetrator who caused the harm.

The case of Andrew Garforth

The responsibility of the state was made clear following the criminal trial of Andrew Garforth. He was sentenced to life imprisonment without the possibility of parole in 1993 for the rape and murder of Ebony Simpson in 1992.  The loss of her daughter has understandably been hardest felt by Ebony’s mother, Christine Simpson.

In July 2015, the Serious Offenders Review Council made a decision to lower Garforth’s prisoner classification from A2 (maximum security) to B (medium security), making him eligible to apply for work and rehabilitation courses. The Council notified Mrs Simpson. She contacted the media. The story was broadcast on TV Channel 9 A Current Affair on the 13th of July 2015.[5]

Mrs Simpson then created a successful online petition, collecting 30,000 signatures in 24 hours, to have the reclassification revoked. The public outrage that followed and Christine’s Simpson petition drove Corrective Services Minister David Elliott to revoke the classification decision and return Garforth to his original maximum-security classification. Mr Elliott stated: “I have come over the top of the Serious Offenders Review Council and have today instructed the Commissioner that Garforth gets zip.”[6]

A Current Affair quoted Justice Action’s coordinator as having said that the Simpson family “needs to get over it”.[7] However that was not true. The transcript shows our statement focussed on the reconciliation of both the family and Garforth:

“It’s a shame for the family to still hold onto such anger towards the man after such a long period, after twenty three years. It’s a good thing for him and a good thing for the community. It’s absolutely essential that Corrective Services does focus on moving him into a lighter less security place. It’s to their benefit, everybody’s benefit, that he can then move on and get some measure of freedom and improvement. It’s a really sad thing to have lost their child but to link it to the man, to the offender, is a shame. They should at some stage, clear the air, move on with their lives, and let him move on with his life as well”.[8]

Justice Action encourages victims and their families to achieve a sense of personal closure, focussing on moving past their anger, and through the help of the wider community to be guided towards leading a more normal life.

Politicising grief

David Elliott’s revocation of Garforth’s classification decision could be viewed as an act of political opportunism.  After Ms Simpson sparked public outrage about Garforth’s reclassification, Elliott made a number of statements; arguing that “this [the reclassification] is not what this government was elected for” and also that “it is essential that any reclassification of prisoners reflects community expectations”.[9] 

However he is wrong as is shown by the Corrective Services NSW manual. Classification isn't a form of punishment, but is a security rating. It is clear that he exploited the anger and grief of victims to be seen to be tough and to justify wrongful punishment rather than defend Garforth's entitlements. The Minister abused his authority and supported the misunderstanding of the law.

Involvement of victims in the classification process runs counter to the rehabilitative purposes of sentencing. The decision of NSW Prisons Commissioner Peter Severin to meet with the families of victims of NSW ‘lifers’ will do more harm. It will refresh their pain, link them firmly to the offenders and allow them to influence decisions which should ultimately be made by the justice system generally.

Politicians see a benefit for themselves by upgrading punishment, but it really reflects their lack of care for victims. Mrs Simpson had no support until she publicly demonstrated her grief and anger on national television with a victims' organisation beside her. It reflected how abandoned she felt and was an embarrassment to all who watched.

This was again highlighted by the struggle of Katrina Keshishian. After being the victim of a violent sexual assault, Ms Keshishian had to go public with her story to get the victims' compensation she deserved. The government had reduced victims' payments, but she was successful in getting her claim reassessed.[10] Government has been mean and unresponsive to victims' personal needs but has tried to satisfy them with more pain for the offenders, as a return to the failed system of vengeance.

Role of victims in sentencing and security classification

Victims have the ability to submit Victim Impact Statements prior to sentencing. During the process of security reclassification, they may also make submissions to the Review council regarding the change, which must be considered by the Review Council before it makes a decision.[11]

However, Corrective Services has the final responsibility for dealing with offences after sentencing. Andrew Garforth has served 23 years of his life sentence, making him eligible for a change in security classification as per Corrective Services’ policies and procedures.

Reclassification is ultimately a decision for the welfare of the offender, and while security changes should consider the impact upon victims and their families, their primary focus should ultimately be on the prisoner.

Conclusion

Overall, allowing community vitriol to be directed at prisoners like Andrew Garforth distracts from society’s compassion for victims and their families, and does not help with their reintegration into everyday life. Politicisation of grief is deplorable, and undermines the welfare of victims, their families, and the prisoners under scrutiny.

References

    1. Enough is Enough, Victim of Crime Support (30 July 2015), Anti-Violence Movement Inc., <http://www.enoughisenough.org.au/?s=victim>.
    2. VOCAL, Welcome to VOCAL (2015), Victims of Crime Assistance League, <http://vocal.org.au/>
    3. HVSG, Grief – Understanding Your Reactions (20 August 2015), Homicide Victims’ Support Group, <http://hvsg.com.au/index.php/support/grief-understanding-your-reactions/>
    4. VOCAL, Welcome to VOCAL (2015), Victims of Crime Assistance League, <http://vocal.org.au/>
    5. Channel 9, ‘Ebony’, A Current Affair, 13 July 2015 <https://www.9news.com.au/a-current-affair>
    6. Miles Godfrey, ‘Ebony Simpson’s killer Andrew Peter Garforth will ‘die in jail’ says Corrective Services Minister David Elliott’, The Daily Telegraph (online), 21 August 2015, <http://www.dailytelegraph.com.au/news/nsw/ebony-simpsons-killer-andrew-peter-garforth-will-die-in-jail-says-corrective-services-minister-david-elliott/story-fni0cx12-1227441075006>
    7. Channel 9, above n 2.
    8. Ibid.
    9. Godfrey, above n 3.
    10. Tim Barlass, ‘NSW Premier Mike Baird admits crime compensation 'mistake' after Katrina Keshishian campaign’, The Sydney Morning Herald (online), 15 March 2015, <http://www.smh.com.au/nsw/nsw-state-election-2015/nsw-premier-mike-baird-admits-crime-compensation-mistake-after-katrina-keshishian-campaign-20150313-143kgb.html>
    11. Crimes (Administration of Sentences) Act 1999 (NSW) s 68.

 

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