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Cases

Triumph at the Mental Health Review Tribunal

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.

 Kerry2

 Kerry

Download media release here

Comments: Brett Collins 0438 705 003

Trades Hall, Suite 204,
4 Goulburn St,
Sydney NSW 2000, Australia
PO Box 386 Broadway NSW 2007, Australia
Ph: 612 9283 0123 fax: 612 92830112
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www.justiceaction.org.au

Michael Riley

 

 

 

 

 

LATEST NEWS ON MICHAEL'S CASE

 Appalling Outcome Report: Rehospitalised - 16th November 2016

 

 

Overview 

Michael Riley is a warm, bright, gentle giant in his late 30’s. He is currently employed at a union and is the loving father of a four-and-a-half year old daughter who starts school this year. While Michael lives, works and is socially engaged in the community, he is subject to a Community Treatment Order (CTO) which has been consistently renewed for 14 years. Michael does not agree with nor does he consent to this order. His diagnosis is one of Schizoaffective Disorder - a diagnosis he rejects.

 

 

Michael does not have a criminal record and has no history of violent behaviour. His only contact with the police has been sparked by his CTO on the isolated occasions on which he is essentially arrested on the grounds that he is a danger to his own reputation. At times, these arrests have been carried out with such force that Michael has required hospital treatment. Despite his gentle nature, Michael’s experience at the hands of the police and mental health authorities has resulted in him feeling as though he is being treated like a criminal. This is a common experience for people with mental illness and an ongoing concern for Justice Action.  

 

Read more about Michael's case here. Watch his interview with Justice Action.

 

 

MAJOR ISSUES

Community Treatment Orders

Forced Medication

Right to Identification

 

 

About Saeed

“Free Saeed Dezfouli” Campaign

freesaeed_2

 

“I am a patient with patients’ rights, an inmate with inmates’ rights and a human being with human rights.

These rights have been fundamentally and severely violated by unprofessional and sadistic state government employees in the positions of psychiatrists, psychiatric nurses and prison officers. They are required to go by the law, regulations, policy and procedures, codes of conduct practice and ethics, but they don’t”

Saeed Dezfouli

 

Introduction

The closed system of the NSW Health Department’s mental hospitals is getting exposure through the window of patient Saeed Dezfouli. It shows systemic abuse of dependant individuals clocked as care and highlights the problem with government bureaucracies dealing with challenging people at the individual level, lacking compassion, concern or rational behaviour.

 

History

Saeed Dezfouli was born in Iran in 1958 and came to Australia in 1983. Upon arriving in Australia as a refugee, he earned a degree in Bachelor of Arts and majored in political sciences. In 1986 he became a citizen of Australia and was working as a court interpreter for the Ethnic Affairs Commission NSW. Throughout 2001, he became fearful of his life and safety and stated that he had been receiving death threats. He felt that he was constantly under surveillance. He said that he warned the authorities by sending them letters about his concerns for 5 months prior to the offence.


He was accused of setting fire to the foyer of the Community Relations Commission (formerly the Ethnic Affairs Commission) at Ashfield by using a container of petrol. Three female employees were trapped by the flames and were taken to hospital in an unconscious state. One of them, a 53-year-old woman from Bonnyrigg, subsequently died from her injuries. Most importantly there were other mitigating factors. Unfortunately on the day of the fire, the emergency fire exit door was locked and the rubbish in the foyer hadn’t been collected, leaving it to obstruct the path of the employees escaping the smoke and flames. He was taken to Burwood police station where he was insulted, assaulted and unlawfully interrogated by the NSW Police. He was subsequently charged with several offences.

 

In contrast to his treatment, Saeed presents no threat to the community. He needs support as an Iranian refugee affected by a heart condition and stress. Saeed is evidently remorseful for his actions and has regrets for what he has done.

 

However, the main issue that needs to be raised is the irresponsibility demonstrated by the authorities by ignoring his claims that subsequently triggered Saeed’s unlawful actions. Saeed did everything within his power to communicate his concerns to authorities, yet these threats were not taken seriously and Saeed followed through by setting fire to a government office. Although he clearly outlined his intentions, the threats were not deemed serious enough to warrant an investigation, highlight the failure of response mechanisms by government officials.

 

This tragedy would never have happened in the first place if proper health and police intervention frameworks were enacted.

 

Detention in Long Bay Forensic Hospital

Mr. Dezfouli has been in detention since 19 January 2002. On 13 February 2002 Saeed was transferred to Long Bay Prison Hospital and in 2004 he was found not guilty due to mental illness. Mr. Dezfouli is not a violent or aggressive man, as has been stated many times by his treating doctors and nurses. He is highly intelligent, articulate and politically aware. He presents no threat to the community and had not intended the harm that was caused more than 15 years ago.

 

If Saeed was tried through the criminal justice system he would have already served his time and been released. However, because he was tried through the mental health system, he has served a period of over 15 years to date and is now being held indefinitely, despite ongoing reviews with the Mental Health Review Tribunal.

 

Mr. Dezfouli, up until the middle of July 2011, was held in the highest security area at Long Bay Forensic Hospital, which he shared with 7 other patients who are classified in the  “lowest functioning group.” He was, and is continued to be denied access to ground leave and has restricted access to a small courtyard. Saeed, along with fellow patients, are denied any access to education facilities, despite education as one of the aims of the Rehabilitation wing in which he is currently held.

 

Since his imprisonment, Saeed has been held indefinitely and subjected to continuous abuse, including:

-   Numerous periods kept naked in a solitary confinement cell for days to “break him down”.

-   Broken ribs and severe bruising and pain from forced medication.

-   Periods of incarceration in cells without basic hygiene, such as four days without toilet paper.

-   In January 2005, he was brutally assaulted by DCS officers resulting in a permanent back injury.

-   Hospitalization due to injuries inflicted by DCS officers.

Mr. Dezfouli now suffers from a heart condition, ulcers and diabetes as a result of the side effects of anti-psychotic medications combined with daily exposure to an oppressive and suppressive regimen.

 

Defending his rights

 

Saeed is in a unique position. He has watched the system from inside for 15 years and continues to point out its hypocrisy, whilst Justice Health (an arm of the Health Department) tries to prevent his outcry and force him into submission with the rest of the patients. He is a gentle person – staff agree he is not violent, yet every two weeks he is restrained and forcibly injected with a powerful sedative, which leaves him feeling severely agitated and facing negative side effects. He is refused a choice of psychiatrist, education and exercise and is not permitted new visitors. Justice Action became his Primary Carer when there was no one else.

 

His mistreatment is a result of Saeed protesting and fighting for his rights and the rights of his fellow inmates. Over the years he has made a number of complaints of assaults by staff, and sustained a hunger strike for his rights for 52 days. He was involved in a campaign to allow patients more time out of their cells, in which at the time they were spending a good part of the day locked inside their cells.  He was also involved in the signing of a petition that stated:

26 of the 30 patients at Long Bay Prison Hospital in the ward have complained to the Health Care Complaints Commission and the NSW Ombudsman about notes on their psychiatric conditions that are fabricated and saying the nurses and doctors rarely bother to talk to them. Several prisoners had gone on hunger strikes. Many patients have been overdosed and medicated against their will.”

 

Although Saeed forwarded the petition to the NSW Ombudsman, it was decided that the complaint would not be pursued and as such, the issues were not addressed. Attached to the petition was Saeed’s complaint about the issues regarding the medical treatment of patients inside Long Bay Forensic Hospital, some of the issues included:

- That the nurses do not provide adequate nursing care to patients;

- That the nurses fabricated notes and call them nurses’ notes;

- That the psychiatrists show up for a couple of days a week for a couple of hours a day, read the nurses’ notes and then write prescriptions without seeing patients;

- That some patients do not speak to a doctor for months;

- That many nurses do not speak to many patients for months.

 

We advise no further action occurred nor were any charges laid.

 

Justice Action believes that Mr. Dezfouli is suffering because his numerous efforts to alleviate his living conditions have to date been futile. Justice Health has absolute power as patients have no finite sentences and are totally dependant on their treating psychiatrist. The principles of patients’ rights under section 68 of the Mental Health Act 2007 (NSW) ('MHA')[1] do not apply in practice. In this system of “care”, no one cares.

 

Saeed appealed to the Supreme Court against the Mental Health Review Tribunal’s refusal to order changes to his treatment. The Tribunal and the Attorney General tried to block this first real appeal against its new powers to make orders, refusing to supply its decision, until an audio record proved Saeed’s entitlement. It appears that the Tribunal sees its role as supporting Justice Health and not making a separate judgment. The lack of complaint from those around Saeed demonstrates widespread abuse and how compromised individuals participating in the health system are.

 

Challenge to Tribunal’s Ban on Saeed’s Name

An interpretation of the MHA by Justice Health is currently preventing Saeed Dezfouli from using his own name in his fight to gain freedom. Section 162 of the MHA[2] states that:

 

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the

name of any person:

(a)  to whom a matter before the Tribunal relates, or

 

Since this case involves significant matters affecting other patients, powers of Justice Health and that of the Mental Health Review Tribunal (MHRT), Saeed wants to ensure it is conducted openly in the public, which allows him to express himself in a manner that is open and honest. Justice Action agrees with him entirely as the secrecy has allowed abuses to occur in the past without adequate accountability.

 

Saeed requests that section 162 of the MHA be waived and that he should be allowed to use his name in the campaign for his release. Furthermore, he intends to highlight the unfairness of his treatment and that of others by the Health Department.

 

He argues that section 162 is intended to protect him from exploitation and exposure by the media, but instead it is being used to protect the Health Department from being held accountable for the treatment of citizens entitled to care and assistance. It has been used to prevent the exposure of a system that allows the abuse of the human rights of nameless, faceless, dehumanised mental health consumers.

 

In short, he wants his right to have his own name returned to him, and for the provision intended for his benefit, and not used to allow an abuse of power against him as a human being. We believe Saeed has the right to have his name distinguished from others and recognised as a unique individual.

 

Conclusion

While Mr. Dezfouli did commit an act that violated the criminal justice system, it does not mean he should be subjected to abuse by the mental health system. The fourteen years he has spent in custody is well above the sentencing trends for the offences he committed. However, unlike the average prisoner, Saeed faces no concrete release date and is faced with the possibility that he may spend the rest of his life within the forensic prison system as the Mental Health Review Tribunal refuses to provide him with the answers that he is entitled to. Just because Saeed Dezfouli has a mental illness, as diagnosed by the Health Department, does not mean that his rights, as a consumer of the criminal justice system and as a member of the Australian community, are no longer valid.

 

Read More:

Media Releases and Resources

Campaign Documents


[1] http://www.austlii.edu.au/au/legis/nsw/consol_act/mha2007128/s68.html

[2] http://www.legislation.nsw.gov.au/viewtop/inforce/act+8+2007+FIRST+0+N/

 

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