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.
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  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  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.
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.