For the last two years, Kerry O’Malley was in control of her life and living independently. Recently, she travelled alone to Ireland for a six-month holiday, visiting friends and relatives without any difficulty and occasion of trouble. Upon returning home, she was the victim of a home invasion and sexual assault. Six weeks passed before she informed the police however they treated her with indifference and did not investigate the matter.
Kerry soon after became disturbed and sought assistance from the hospital. They assisted her but then applied for a community treatment order (CTO) for six months, which would involve forced injections of Ablify (aripiprazole). The forced injections caused her great ‘anxiety, distress, and restlessness’. Kerry entered the hospital as a voluntary patient but was converted against her will to an involuntary patient. The CTO deprived her of her dignity and control over her life.
Over the last decade, Kerry has been subjected to various CTO’s however there have been significant and prolonged periods where she was able to live her life without medication. She wishes to control her own life. This is why Justice Action (JA) became involved at Kerry’s request.
Our team assisted Kerry earlier in 2015 and 2017 where we won agreement from the Mental Health Review Tribunal (MHRT) to reject the imposition of CTO’s due to the lack of legal justification and lack of evidence of how Kerry poses a risk of ‘serious harm’ to herself or others. It was recognised that the ‘Personal Management Plan’ that JA and Kerry proposed addressed the concerns of NSW Health and satisfied the criteria of ‘safe and effective care’ and was of a ‘less restrictive kind’ as per the statutory requirements of the Mental Health Act 2002 (NSW).
On 17 December 2019, Kerry asked for JA’s assistance to represent her in a hearing held by the MHRT at the Concord Centre for Mental Health on the day she was to be discharged from hospital. Despite her stated needs and the ‘Personal Management Plan’ that JA proposed as an alternative to forced medication, we were not successful in blocking the CTO. However, a concession was made by the MHRT as the CTO period was reduced from six to three months.
The hearing represented a struggle for consumer empowerment and the prevention of patient coercion. It was the matter of ensuring Kerry’s dignity and rights were not ignored. The forced injections also placed her at risk of iatrogenesis (medically-induced illness), which can entail compounding negative medical side effects. Kerry sought to avoid unnecessary medical intervention. Clearly the CTO and forced medication will discourage her from seeking any medical help she may require in the future.
There was no evidence presented at the hearing that justified continued forced treatment – only a medical ‘preference’ rather than necessity. Kerry told the tribunal that she did not oppose undergoing medical support with the exception of the forced anti-psychotic medication, which generated restlessness, full feelings of anxiety, and an inability to concentrate. Her medical history of ‘Neuroleptic Malignant Syndrome’, which makes certain medications incompatible with her genome causing her distressing side effects, was ignored. Despite Kerry’s vocal distress and objection against forced injection, her needs were disregarded and her autonomy was overridden.
During the hearing, Kerry’s input was ignored by the MHRT and resisted by the hospital. Her proposed ‘Personal Management Plan’ was not read or discussed – her choice to work closely with her nominated social supports and consult with her private psychiatrist was rejected on the basis that they did not support forced medication.
JA is concerned about the breach of formal obligations under Kerry’s recent NSW Health ‘Treatment Plan’ in relation to the hospital’s responsibilities to collaborate and work with her chosen services and clinics. As a provider of specialist mental health services, the hospital is required to engage in ‘close collaboration with other service providers’ towards ‘agreed upon goals’ with its patients. It is dubious whether they will properly uphold these responsibilities and act in accordance with Kerry’s wishes.
Kerry rang the team recently to say that she was home and extended her gratitude for JA being there to assist and represent her during the hearing even though we were not successful in blocking the CTO.
Kerry and JA intended to lodge an appeal to the Supreme Court to block the wrongful imposition of this CTO based on its lack of legal justification. However, three months was insufficient time to complete the necessary administrative processes to have the appeal heard by the Court, before the next Tribunal hearing Review, if the Health Department decides to pursue renewing the CTO. Had the CTO term been six months, the appeal would have been pursued.