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History of Prisoner Movement

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Miriam Merton Mental Hospital Death Inquiry

Media Release November 9, 2017

           

The death of Miriam Merton in the Lismore Hospital mental ward, lying naked in blood and faeces while a nurse casually mopped around her, shocked everyone. The video footage and media had truthfully exposed the culture to the public forcing accountability. Yet no-one proposed that solution or other ways to prevent similar suffering in the Parliamentary Inquiry into her death last week. This failure shows the corruption in mental health, with noses in the Health Department’s trough of over $20 billion.

The Minister for Mental Health Tanya Davies in announcing the Inquiry said on May 12 that ‘she closed her eyes because the vision was too horrible’. The Minister for Health Brad Hazzard said that ‘this poor woman was treated in a way that none of us could ever really have imagined’. Chief Psychiatrist Murray Wright said the staff involved ‘failed on every level’. But none of the leading organisations nor the Health Department itself addressed Miriam’s death and prevention in their presentations, they just wanted more money.

Our team brought lived experience before the Inquiry with Kerry O’Malley, Douglas Holmes and Dr Yolande Lucire giving oral evidence and a submission. Kerry O’Malley shared her trauma of being abused under Community Treatment Orders, forcibly medicated with disabling side effects and callously ignored.

“I have a wide network of family and friends who support me, and I just want the Health Department to leave me alone,” said Kerry O’Malley.

We referred the Committee to the Our Pick Report and Mad in Australia where the abuse of people like Miriam Merton and Kerry O’Malley was researched, their isolation exposed and a solution proposed. We asked the Committee under its charter, to support the use of Rose Cottage in Callan Park for a consumer run organisation, at no cost to the government, to ensure mental health consumers had their own independent base to do the work of Justice Action. These vulnerable people need responsive representation.

Kerry O'Malley - Chemical Restraint in Practice

Kerry O’Malley – Chemical Restraint in Practice
Report CTO order retained: 22 August 2017

Kerry O’Malley is a 71-year-old woman whose involvement in the mental health system over the last 47 years has revealed the extent to which draconian control and dismissal of individual autonomy is entrenched in the culture of Australia’s mental health system. She has been subjected multiple times to Community Treatment Orders (CTOs) and forcibly medicated with severe physical and social side effects. Working with Justice Action, Kerry was successful in having a CTO removed by the NSW Mental Health Review Tribunal in May 2015. However the Health Department once again imposed a CTO on her in April this year, but the Tribunal refused to revoke it in an August hearing.

This report aims to raise awareness about Kerry’s situation and that of the thousands of others facing forced medication across Australia, and to get support for an appeal to the NSW Supreme Court, to establish respectful standards for vulnerable people. Kerry previously spoke openly about her situation, wants support and has asked for her case to be fought out as resolutely as possible.

In March 2017, Kerry was returning from a six-month holiday in Ireland, but was unable to return home as her tenants have remained there. Disturbed by the situation, she became sleepless and restless. In that state she was apprehended while wandering around and taken to St George hospital for seven weeks, then was moved to Nepean Hospital for three days before being released on a CTO. Whilst in St George Hospital, doctors administered multiple drugs to her, including: Paliperidone, Sodium Valproate, and Lorazepam. These drugs greatly disturbed her and caused severe side effects. A gene test in 2015 revealed that Kerry’s genotype prevented her from metabolising many common psychiatric drugs in strong doses, and that continued treatment with them would be counter-productive. Yet when Kerry and her sister, Margaret, raised these concerns with both St. George and Nepean Hospital staff, doctors did nothing whilst reassuring them the doses were small but failed to address their concerns directly. The indifference of doctors at both facilities is a toxic attitude towards mental health patients that disregards their personal autonomy.

On Kerry’s release from Nepean Hospital into the Penrith Community Health Centre on the 28th April 2017, she was placed once more on a CTO against her wishes, which covered a six-month period till 27th October 2017. While CTOs are ostensibly imposed out of concern for the safety of the individual and the community, Kerry has never demonstrated behaviour that may be deemed threatening to herself or to others. Her current treatment order was a result of her being found to be wandering ‘aimlessly’ in public. Moreover, she did not require medication while in Ireland, nor did she make any doctor’s appointments as observed from regular contact with her sister. This shows that given the right circumstances, including family and community support, Kerry is an independent and fully functioning member of society. The true threat lies in her being continually medicated against her will with medication that disturbs and reduces her as a person. Kerry has suffered a number of severe side effects under medication imposed by the CTO including anxiety and depression, which has prevented her from engaging in the community activities that she once enjoyed. In Kerry’s words, the last five months have been “very invasive” and “unhelpful”, which exacerbated the feeling that her life is not her own. No human being should be stripped of their dignity and autonomy in such a way, much less a vulnerable 71-year-old woman.

Hoping to revoke the CTO, Kerry once more sought the assistance of Justice Action. In two hearings on the 8th and 22nd August 2017, the NSW Mental Health Tribunal deliberated on new and convincing evidence relating to Kerry’s metabolic genotype with expert testimony by a trusted psychiatrist. Justice Action, acting on behalf of Kerry, argued that her current treatment regime under the CTO was unnecessary and unlikely to bring any long-term improvement, considering the negative short-term impacts on her physical health and social life. It became evident during the hearings that Kerry felt restricted and controlled by the CTO, and did not fully understand her rights.

Following the 8th August hearing, Justice Action put together an alternative proposal for a Personal Management Plan to allow Kerry a measure of agency and to preserve her dignity. She would receive treatment from her two preferred psychiatrists, with whom she had developed a longstanding and trusting relationship, and would also rely on the support of her family and friends including her sister, church friends, and Justice Action.

When presented with the opportunity to return Kerry’s autonomy and dignity in the second hearing on the 22nd August 2017, the Tribunal instead deferred control to the Health Department. Unbelievably, it did not find the CTO to be overly invasive, and declared it had taken Kerry’s needs into account despite her vocal opposition. Furthermore, the Tribunal’s dismissal of Kerry’s alternative Personal Management Plan fails to substantiate their claim of s 53(3)(c) of the Mental Health Act 2007 (NSW), which states that CTO’s can be applied when there is a ‘previous history of refusing to accept appropriate treatment’. Kerry has already agreed to follow supervised treatment with her nominated health professionals. In the decision, Kerry was unquestionably deprived of her right to give ‘free and informed consent’ to the CTO, as stated under Article 25(d) of the UN Convention on the Rights of the Persons with Disabilities. Justice Action seeks to appeal the decision on the basis that the tribunal has not properly considered the possibility of a less restrictive alternative to the CTO.

Kerry has sought the assistance of Justice Action in order to seek the revocation of the Community Treatment Order, which permits her subjection to such a process. The Community Treatment Order, administered by NSW Health, undermines Kerry’s individual agency as it mandates medical intervention based on their challenged diagnosis of schizoaffective disorder. Kerry’s lack of participation in her own medical treatment has had negative consequences for her quality of life and diminishes her ability to have her opinions heard. Clearly, despite the negative consequences of a CTO on Kerry’s life, the Mental Health Review Tribunal dismissed an application to revoke the CTO on the 22nd of August 2017.

This report thus aims to lay the basis for a challenge to the NSW Supreme Court.

CTO Legal Basis

As held in Rogers v Whitaker (1992) 175 CLR 479 at 489, a prerequisite to the medical treatment of an individual is the need for the individual’s consent to that treatment. Forced medication is exceptional. Subject to procedural safeguards, it is permissible when justified by necessities recognised by the law: Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315 at 323.

It can be agreed that the application of a CTO and forceful medicating practices, in any circumstance, is a violation of an individual’s most basic human rights, which also fails to uphold specific sections of the Mental Health Act 2007 (NSW).  As reaffirmed by the UN within the Convention on the Rights of a Person with Disabilities, which is founded on the basis of ‘inherent dignity, and individual autonomy, including the freedom to make one’s own choices’, the CTO stands to strip these rights from Kerry.

The requirement for the least restrictive method in s 53(3)(a) contradicts the CTO, which serves to impose control upon Kerry’s life, even when she’s happy to agree on voluntary treatment alternatives. The inhumane conditions imposed by the CTO further restrict her full and effective participation and inclusion within society. Furthermore, Article 25 specifically requires ‘health professionals to provide the same quality to persons with disabilities as to others, including on the basis of free and informed consent’. In this sense, her right to equality has clearly been ignored.

Additionally, Kerry’s treatment under the CTO exacerbates her previous negative experiences within the health services, as all health professionals consulted in the treatment remained focused on her ability to relapse. This argument is supported by Dr. Suman’s admission at the Tribunal, who made clear that Kerry’s psychiatric history would indicate a relapse would occur three to six months after being taken off the CTO. This value judgment is based on a probability that Kerry’s medication is currently effective in maintaining her condition, thus taking away the medication undermines her ability to be ‘successful’. However, Kerry’s ability to function and maintain quality of life under her current medical regime is impaired and that is an important consideration that has been neglected.

Side Effects

A 2015 pharmacological review and a 2017 independent home medication review noted issues with Kerry’s ability to correctly metabolise her current medication, leading to severe side effects. Side effects of Kerry’s current medical regime include headaches, memory impairment, dizziness, feeling physically ill, disturbed thoughts, sleeplessness, visual problems, drowsiness, anxiety and severe depression. Her continued suffering of these side effects indicates the current medication regime imposed on her by the CTO is inappropriate and potentially lethal. Not only has her physical condition significantly deteriorated, but her social engagement and support has diminished greatly due to the imposition of the CTO. Kerry regularly enjoyed community and church-based activities that helped improve her mental state, including teaching scripture in a local school, Irish dancing classes, sewing groups and meeting friends for coffee in the mornings.

The CTO, however, cut her off from these activities; made it difficult to get out of bed, and caused constant feelings of anxiety and depression. Her involvement with authorities over the years has strained family relationships, where police had come to her house multiple times, including one occasion where they broke the lock of her front door and left her with a large price to pay for the replacement. Kerry feels that her distress was increased after multiple visits from police and ambulances to her house leading to her being alienated from her surrounding community, and leaving her embarrassed due to being labelled as ‘mentally ill’. As Kerry is unable to drive when medicated and has limited access to public transport, she has experienced restrictions of travel for ordinary day-to-day tasks such as shopping for groceries. In short, the CTO deprives her of the social network that could otherwise expose her to opportunities to improve her mental state.

Meaning of Less Restrictive Care

There is no definition in the NSW legislation of the meaning of “care of a less restrictive kind”. As Beazley P held in Attorney General for the State of New South Wales v XY [2014] NSWCA 466, the context and purpose of the Mental Health Act 2007 (NSW) indicates that “care of a less restrictive kind” ought not to be confined so as related only to the extent and type of leave which a patient may be granted. The objects of Part 5 of the Act include the provision for the care, treatment and control of a patient. The principles of care and treatment of persons with a mental illness include that a person should receive treatment in “the least restrictive environment enabling the care and treatment to be effectively given” [s 68(a)].

Significantly, as Beazley P highlighted, the words “care”, “treatment” and “control” are all distinct objects. The word “care” as used in s 43 encompasses a person’s overall care, including care in the sense of physical, emotional and spiritual wellbeing. It includes the provision of what is necessary for health, welfare, maintenance and protection. That is in addition to the physical controls that are placed on a person, including the extent of leave that a person is given and whether that leave is restricted and unrestricted.

Further, as Brereton J stated in S v South Eastern Sydney & Illawarra Area Health Service and Anor [2010] NSWSC 178, the legal question to be satisfied is if “no other care of a less restrictive kind consistent with safe and effective care is appropriate and reasonably available”, and that the patient “would benefit from the order as the least restrictive alternative consistent with safe and effective care.”

Both cases indicate that coercive treatment is unacceptable if the person wants effective support in another form. In Kerry’s case, she wants a less restrictive version of a treatment plan that takes into account her genome types, side effects, and personal well being to be consistent with safe and effective care.

TRIBUNAL DECISION

The Tribunal dismissed the application for the revocation of the CTO and said it had:

  • Taken into account the needs of Kerry Anne O’Malley
  • Considered the past history of non-compliance with her medication resulting in readmission to hospital
  • Regarded with uncertainty the alternative treatment plan being presented by JA
  • Given credit to JA for working towards a plan, though it missed an “important ingredient” as a treatment plan and was rather a supporting plan
  • Clear evidence that the people looking after Kerry at the moment (her Treating Team) had shown to the Tribunal they are listening to Kerry, and prepared to modify programs, and to meet her needs within the bounds of a CTO
  • Decided that the current plan is not overly invasive. It sets out obligations for Kerry and her current team.

Grounds of Appeal

The ground for an appeal available to Kerry is on the basis of s 67(1)(b); ‘on any question on law or fact arising from the order or its making.’ This would entail proving that the Tribunal misapplied the law or did not duly perform the task entrusted to it by legislation. We are arguing that this is because the tribunal did not properly consider s 53(3)(a) of the Act;

“That no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person and that the affected person would benefit from the order as the least restrictive alternative consistent with safe and effective care.”

The Tribunal ignored that the proposal Justice Action had developed for Kerry should have constituted a less restrictive treatment option to a CTO. In determining whether a CTO is the most appropriate option available, the court may take into account legislative principles for care and treatment under s 68 of the Act. These principles include taking reasonable steps to ensure the person is able to be involved in work and the community wherever possible; be provided with appropriate information about their treatment and any alternatives; be able to be involved in their treatment and taking as many steps as reasonable to obtain the person’s consent to treatment. Kerry’s physical and social side effects (refer to side effects listed above) of the medication forced on her from the CTO severely impacted various aspects of her daily life. Her subsequent complaints and objections to treatment went unaddressed for a significant period of time. Health Services have not actively taken reasonable steps to ensure she was involved and as willing as possible in her treatment.

Justice Action had prepared an alternative personal management plan that satisfies s 53(3)(a) and which was not properly considered. It involves medication that would be prescribed by Dr Lucire, that takes into account her genome profile, psychological therapy conducted by Dr Chaturvedi, a social support system made up of Kerry’s sister Margaret and her local community, and an advance directive clearly detailing Kerry’s own treatment directives. Thus the CTO should be revoked, as there are treatment options available of a less restrictive kind that are consistent with safe and effective care. This plan would benefit Kerry by taking into account her consent alongside her physiological, psychological, and social needs, whilst reducing the distress she experiences from the current CTO.

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

 

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Justice Action
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4 Goulburn Street
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E ja@justiceaction.org.au
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