time for Justice Action
Update – 20/12/2013: Supreme Court & High Court Appeals
Two cases on consecutive days about Saeed! The Supreme Court looked at the legal power over the hospital, and the High Court looked at the same issue from an identical challenge almost exactly 3 years before.
In the Supreme Court, Justice Lindsay listened to arguments all day, with four lawyers in attendance, and has reserved his decision. In the High Court, intervention was refused for the $52 000 costs against us in the same challenge. Amazing stuff! Yet all those in the mental health industry agree that force against mental health patients, whether seclusion or restraint, is not therapeutic. The court will have to resolve this.
Appearing before the Supreme Court via video link, Saeed appealed against the Mental Health Review Tribunal’s decision to leave the treating doctors power over his medication. The hospital had wanted to change Saeed’s medication from oral to injected form. This was strongly opposed by Saeed. This case is particularly influential, as it will serve as a precedent for future cases involving equity and the functionality of the Tribunal.
Saeed was represented in the hearing by barrister Scott Fraser, who argued that the Tribunal had not fulfilled its role to consider issues of personal liberty and the rights of individuals. Thus, medication against the patients’ wishes should remain a Tribunal responsibility, rather than being delegated to the treating doctors.
However, barrister Perry Herzfeld, who represented the Tribunal and Justice Health, argued that s 41 of the Mental health (Forensic Provisions) Act 1990 was deliberately broad, to allow for greater discretionary powers by the Tribunal so it could do what it wanted or do nothing to intervene.
Justice Lindsay has reserved his decision.
High Court Appeal
The High Court of Australia has dismissed our appeal against the $52,000 court costs made against us.
This saga began in November 2010 when Justice Johnson in the Supreme Court dismissed our appeal against the Mental Health Review Tribunal’s treatment of Saeed. This led to our hearing at the Court of Appeal on 9 July 2013, which was also dismissed.
The decision by the High Court, being the final and highest court in Australia, means the issue once again falls into the Attorney General Greg Smith’s lap. Mr Smith would need to decide whether or not to enforce an order based upon a lie, regarding an issue which is clearly extremely important: the use of force against mentally ill persons.
The High Court decision can be found at www.austlii.edu.au/au/cases/cth/HCASL/2013/202.html
Use of Force in Mental Health
Report on the 9th National Seclusion and Restraint Reduction Forum
The 9th National Seclusion and Restraint Reduction Forum in Canberra on the 28th and 29th of November, 2013 addressed the issues surrounding the overpowering of mental health consumers in Australia and offered alternatives to seclusion and restraint. At the end of the first day, the Chair of the National Mental Health Commission, Alan Fels, presented the National Seclusion and Restraint Declaration.
The declaration asserted that “seclusion and restraint of people with mental health problems is a human rights issue”, it is “not therapeutic” and it is “distressing to everyone involved.” It called for change.
iExpress: Now launching prisoners & mental health patients online!
Justice Action is proud to introduce iExpress, the world’s first prisoner webpage and interactive email system aimed at empowering people in prisons and forensic hospitals and bringing them into the digitial world, reducing the divide and social exclusion that currently exists. They will now have the opportunity to access an exciting, new channel of self-expression and communication, free of charge. Launch video here.
We are bringing them out of the cells and onto the net!
Monday, 02 December 2013 13:36
Justice Action has achieved a considerable victory! This comes from the National Mental Health Commission who, in their 2nd Report Card, has quoted our work "Mad in Australia" as expressing the voices of the people in the justice system regarding mental health. It says that those views and stated needs must be incorporated in any promising practice for changed policies in a failed system, costing up to $1,000,000 a person a year.
This means that we will now be listened to, rather than excluded as an illegitimate outsider, with no power, especially regarding the most unpopular and socially excluded people in the community. This acknowledgement is now being used as leverage in negotiations with bureaucracies within the criminal justice sytem and government.
Mad in Australia Update November 2013
This publication exposes the history of abuse of mental health patients in historical and cultural context. It identifies how the culture of doctors forcing medication on
mental health patients began, in breach of their ethical obligations, and against the evidence of its effectiveness. It also offers solutions. Click the link below to read
the latest edition.
You can also download the latest edition (Nov 6, 2013) here.
Published in Mad in Australia
The Queensland Parliament has recently made a proposal for new changes to legislation that will place an overriding power on the Attorney General to overrule any previous court decision and detain individuals who are deemed a ‘risk to the public’ indefinitely, despite the fact they have completed their original sentence.
The legislation will allow the Attorney General’s ruling to be final and conclusive, with no review or legal appeal avenues available for the individuals. This new legislation has been deemed by Attorney General Jarrod Bleijie as necessary to keep the “worst of the worst” criminals in jail for life, giving him the power not only to keep rapists, pedophiles and dangerous sex offenders behind bars but also has the power to incarcerate already released offenders who he believes are a danger to the public. As such, under this new legislation, the prisoner does not have to reoffend to be dealt with under this Act.
The legislation offers a punitive punishment to individuals who the court believes might commit crimes if released, and further does not provide for rigorous enough mechanisms to determine if a person is likely to re-offend. Under new legislation, two psychiatrist appointments can be deemed sufficient to determine the likelihood of re-offending, with this review conducted annually and offenders will have no choice in regards to their psychologist or changing the amount of time for which reviews are conducted.
The proposed legislation, the Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 is applicable to any relevant person who is subject to a previous order made under the Dangerous Prisoners (Sexual Offenders) Act 2003. The effect of this legislation will be that any individual deemed to be a ‘risk to the public’ will be detained indefinitely if it is deemed by the Attorney General to be in public interest.
One of a number of reasons why such legislation is problematic is that it fails not only to define the term ‘public interest’ but that it fails to provide statutory procedures and guidelines on how the governor general should determine whether detention is in the public interest or not. Such lack of clarity gives opportunity for the Governor to establish public interest as the reactions by the community and politicians which is often heavily exaggerated by mainstream media. It is for this, and a number of other reasons that the proposed legislation has been widely criticized by the courts and academics alike.
This form of preventative detention amounts to both an increase in punishment and a new punishment for the original offence. The proposed changes disregards the rights and liberties of the individuals subject to this Act, and disregards the separation of powers that is fundamental to the operation of Australia’s legal system. Lastly the proposed changes breach a number of Australia’s human rights obligations, specifically the principle of double jeopardy, an obligation under article 14(7) of the ICCPR which states the following:
7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
The case of Robert Fardon
One such individual who could be detained under this proposed legislation is Robert Fardon. Robert Fardon first came into contact with the courts in 1967 at the age of 18, and again for another offence he was convicted in 1978 and sentenced to 13 years imprisonment for raping and indecently dealing with a 12-year-old girl. Since this date he has been released and again detained numerous times, however has not been convicted of any offence since 1988. He has spent most of his life in gaol. Despite this he has been labeled as the face of sex offenders in Queensland. In 2003 an order was made under the Dangerous Prisoners (Sexual Offenders) Act 2003 to detain him for an indefinite period of time once he had completed his sentence. Unlike the new legislation, this initial legislation allowed the court to decide if individuals should be released into the community, often based on psychiatrist’s reports. If dealt with under the most recent proposed changes, Robert Fardon could potentially be held in prison indefinitely for the rest of his life, subject to the ultimate decision of the Governor. Queensland’s current Attorney General has openly announced he intends to target individuals such as Robert Fardon under this new legislation.
There are currently more than 90 of 132 individuals declared under the ‘Dangerous Offenders’ title in Queensland, currently in the community on supervision orders. This legislation gives the Attorney General the power to retract these supervision orders if he deems these individuals a ‘risk to the community’ and place these individuals back in prison for indefinite periods, outside of the reach of any legal avenues, even if they have not reoffended.
A Better Response
A much better response is circles of support within the community. Community based approaches to rehabilitating sex offender’s is much more effective as opposed to a punitive solution which simply alienates individuals and releases them at a later date. This concept is echoed by an article in the Green Left Weekly newspaper from a women’s rights perspective who argue that continued punishment for sex offenders will not solve the problem.
Community based approaches were part of Justice Action’s proposal to the NSW Government more than four years ago in regards to Dennis Ferguson. Amongst a detailed plan to tackle sex offending were suggestions such as ‘Circle of Accountability’ programs, which are implemented in other countries such as the UK. These programs offer a network of support consisting of counselors, clinical psychologists, psychiatrists and community representatives to prevent reoffending.
True rehabilitation can only come from increased sex education, therapeutic programs and equality between both sexes, not from increased punishment for sex offenders. One method in particular that is worth mentioning is Cognitive Behavioural Therapy. This form of therapy is effective in the rehabilitation of sex offender’s as it teaches them that it is possibleto have control over their thoughts, feelings, and behaviours. It helps the person challenge and overcome automatic beliefs by using practical strategies to modify their behaviour, with the result of increased positive feelings, leading to increased positive thoughts and conduct.
The case of Dennis Ferguson
A similar issue of legislation being introduced to target particular sexual offenders was seen in the case of Dennis Ferguson. The NSW government was effective in passing legislation which allowed Housing NSW to terminate the public housing lease of convicted sex offenders, following the public response to Ferguson being granted a housing lease in Ryde, NSW.
What is perhaps the most problematic thing about such legislation, and the media hype surrounding not only these two men, but people like Darren Anthony Francis, and Mark Anthony Foy is that by creating deviancy amplification, and labeling these men as “monsters” and the “worst of the worst” the media and government are detracting attention away from the bigger issues surrounding sexual assault and sexual violence. In exerting their attention into one person like Robert Fardon, they are avoiding raising awareness of harms that are actually occurring and ways that they can be prevented. Greater education about the occurrences of abuse and the likely causes and preventative measures that we as individuals and society can take should be put on a higher priority than monstering pedophiles who fit the visual representation that the tabloid media presents to us.
This has been argued on the 16th of October by the socialist alliance who are critical of law and order politicians, police and prison operators who are continuing to address sexual violence with punitive measures. “Sexual violence will not be ended by locking up dangerous and alienated men after they have committed atrocities and then releasing them, unaccountable and unsupported to commit more and worse offences after further dehumanization in jail” (Green Left Weekly). The proposal, therapeutic work with offenders, restorative justice and violence programs that demand accountability from violent men and challenge private and public sexism.
Stark figures are that one in four females and one in eight males are sexually abused. It is a very common crime with 90% happening with a trusted family member or friend in a home, and mostly not reported. Of those charged, 95% are unknown to police. The level of recidivism after exposure is lower than almost any other crime, and treatments work. Yet "sex offenders" are labelled and excluded like no other person. It is a label for life with unexposed sex offenders often the most righteous accusers. The exposed offenders are very normal - just scapegoats for bad community management.
Many victims don't report continuing abuse, as the stereotype of the dangerous stranger makes them think they won't be believed, and also they realise that the effect of exposure on their family and themselves would be devastating. The family member very often is essential and trusted in other roles. The hysteria of the government response blocks relief for the victim and protects the abusers. In fact it is a community issue requiring community support and resolution.
The punishment for an assault driven by anger causing permanent injury can be light, but an assault driven by lust for pleasure causing no injury can cause lifelong labelling and exclusion.
A Proposal for the treatment of sex offenders, their victims and their communities: This paper proposes the creation of a Sex Offenders Court.
Housing - COSPs - new quasi prison system: There has been a dangerous development of a quasi-prison system being created around the resettlement of ex prisoners. Before enacting a new housing law to evict Ray (Dennis) Ferguson, he was told a COSP (Community Offender Support Programs) would be the only place available for him! Instead of people ending their sentence and returning to the community with support from non government organisations and mainstream services, Corrective Services has begun taking federal homelessness money and extending the prison system by stealth. They are calling them COSPs but in reality they are controlled by the prisons department, where curfews and in some cases even permission to meet family members has to be granted two weeks in advance. This is destructive of community support development, takes away the essential element of personal responsibility and trust and reduces the money for community organisations involved in post release services. The prisons departments are already squandering their money and failing badly. Ray (Dennis) Ferguson was told a COSP would be the only place available for him! Justifying their system! We must make sure we can properly support people like Mr Ferguson in the community.
Prisons as part of the Community: This is a key to JA's work. It was presented to the NSW Legislative Council 2009 as part of the campaign against the corporate privatisation of prisons. It is an analysis of the conflicting policies of social exclusion and community building, giving examples of how they conflict in practice and offering some direction for change.
Media Release 23/09/2009 - Mr Ferguson’s response - Rees Housing Amendment Bill
"Local cases challenging forced medication of vulnerable patients in Australia, now have backing from the UN" said Justice Action Coordinator Brett Collins.
"The UN Committee for Disability condemned Australia for forcibly medicating and detaining people affected by mental illness. Australia was the only country of the 79 that have ratified UNCRPD to reserve its right to forcibly medicate the disabled. It directly urged Australia to rethink its policies and to comply with international human rights standards" said Mr Collins.
“The Committee recommends that Australia should repeal all legislation that authorises medical interventions without free and informed consent of the persons with disabilities concerned…” - Concluding Observations on the initial report on Australia, adopted by the Committee at its tenth session (2-13 September 2013), para 34.
"The media has successfully challenged the secrecy of the area, with the ABC applying for the right to report on Saeed Dezfouli's hearings before the Mental Tribunal, Supreme Court and High Court of Australia, as well as Sydney City News investigative report pursuing it. After psychiatrists conflicted on whether it was "healthy" for Saeed to be able to use his name in his challenges, the Tribunal accepted on September 12 that it would cause damage to him and make him feel discriminated against to not retain his identity, and ordered the secrecy under s.162 to be lifted" said Mr Collins.
"Other people in the community have now come out. Michael Riley for instance, is someone who is not afraid to reveal his story involving forced medication and compulsory detainment by health authorities. In a recent interview, Michael revealed that since being labeled as 'mentally ill' he has suffered constant abuse and has been treated as a criminal by the health system rather than have the support he deserves" said Mr Collins.
"Psychiatrists are also starting to speak up about the dangerous effects of forced medication. In an affidavit to the Supreme Court, psychiatrist Dr David Bell, said that the antipsychotic medication could, at the dosage recommended by the treating team, “damage the brain as well as producing the metabolic syndrome” (p 4) and “at that level it produces effects that can resemble mental illness such as schizophrenic psychosis” (p 4)" said Mr Collins.
Comments: Brett Collins 0438 705003
Michael Riley is a gentle and well-educated man in his late 30s who has been taken against his will in and out of state mental health systems and forcibly medicated since February 2000. Since then, his rights have been constantly abused and the authorities treat him like a criminal despite proclaiming that he isn’t. Michael has no criminal record and has never harmed another person or himself in his life, yet he is being treated like he has supposedly breached the Mental Health Act. In his interview with Justice Action, Michael shares his experience at the hands of the mental health system. His size at 6'3" and his unusual beliefs have made him a easy target.