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The prisoner who was accused of being mentally ill for writing to MP Clive Palmer last year, has again successfully opposed the diagnostic formulations of his treating doctors. They had insisted on using enforced medication that his poor metaboliser genotype, tested in 2012, demonstrated that he could not metabolise. This is a landmark victory.

“The adverse effects of the drugs with which he was injected this time and those he was given in the past are described as ‘torture’ in the literature and by the patient. Such drugs were used to torture Soviet dissidents until 1974 because in Russia, people who opposed the government were deemed to be mentally ill under the Russian mental health act. Mr Baker was said to be suffering from delusions because one of the topics in which he has interest and about which he knew quite a bit was corruption in the pharmaceutical industry. He was desperate to stop them injecting him again and having again misdiagnosed him with paranoid schizophrenia” said psychiatrist Doctor Yola Lucire.

Justice Health said that his ideas made him vulnerable to attack from other prisoners and the medication would make him less vocal. The hospital had already held him down and injected him with antipsychotic medication although they knew barrister Ben Fogarty and psychiatrist Yolande Lucire had been briefed to oppose them in a hearing a few days later.

The Tribunal found no justification for holding Mr Baker in the hospital and being forcibly medicated. It agreed that Mr Baker presented no risk of serious harm to himself or others. It heard that he needed a job, an interest and stability. It ordered that he be removed from the hospital.

The certificates that brought Mr Baker before the Mental Health Review Tribunal were signed by two doctors who did not speak to the patient, did not disclose that fact, and did not appear at the Tribunal hearing. Evidence was given by others only one of whom had had any contact with the patient and who appeared to offended by Mr Baker's topics of conversation but did not appear to challenge his beliefs. None of those paid to monitor health delivery helped him or other prisoners. Not the Board, Legal Aid, nor the Board running the Community Reference Group. It is a disgraceful culture that they have developed, but Health has the money to buy everyone.

“Small wonder that bed requirements in NSW for the forensic patient population nearly trebled between 1992 and 2003 to accommodate a misdiagnosed population who are treated with drugs they cannot metabolise and have no possibility of recovery. This has all increased with new drugs whose side effects our doctors do not recognize” said Dr Lucire.

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.

During the hearing the Tribunal asked: “What would you like the doctors to do for you?” Mr Baker responded, “Just leave me alone.” Later in the hearing the Tribunal discovered that he had been shouting out at night. The 69 year old is deaf in his left ear and 25% in his right. The hospital was asked if they would fit aids for him. “After 24 years!".

For 15 of his 24 years in jail, Mr Baker had been held in effective solitary confinement in super max despite the fact that he has never been aggressive or violent in hospital although he had some adverse drug reactions when forced to take a drug associated with suicide and homicide. He had been moved from cell to cell every four weeks, and denied stability. When out of his unit, he was put in leg irons and handcuffs. He was assaulted several times when his possessions smashed while guards watched. He was told he was mentally ill and was forcibly medicated despite his requests that he be left in peace, have a job and mix with others.

After a similar hearing by the Tribunal on April 30 last year, the Tribunal ordered his removal from the hospital. But he was held in the mental health pod of the MRRC for 15 months, with a series of unstable people in transition around him, no job, education and no chance for settling down. He was set up to fail – but didn’t.

We have asked Commissioner Peter Severin to return Malcolm to Nowra.

 

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