Medication Forced Again
Kerry O’Malley Report: Mental Health Review Tribunal Hearing 1/4/20
Kerry O’Malley, defending against an application by the Health Department for a Community Treatment Order (‘CTO’), lost her case at the Mental Health Review Tribunal (‘MHRT’) hearing on the 1st of April, 2020. The CTO is now in force, permitting the Health Department to forcibly inject her every month.
The Tribunal, held at Gladesville, consisted of three members: a lawyer, a psychiatrist and a former nurse acting as a community member. It was held as a video-conference linking to the Nepean Hospital treating team – psychiatrist and a nurse/case manager, with Kerry O’Malley in the JA office. Kerry again requested Justice Action’s (JA) support for the hearing. JA has stood beside her since 2015 after her doctor requested its assistance.
This hearing followed an adjourned hearing on 11th of March, 2020, when the Tribunal had agreed that Brett Collins, her primary carer, would be recognised as her representative and thus have access to the Health Department file for the purpose of the case. However, in the intervening period, two Deputy Presidents of the Tribunal overruled the hearing decision and said that no person was allowed representation if they were not a patient locked in hospital.
Not only was Kerry denied representation at the hearing, but also as a consequence, independent access to her file. The Penrith Mental Health Service then gave Kerry herself 30 minutes to look at 6 pages rather than the whole file as required by law.
The primary point of discussion in both hearings was intended to be the replacement of the forced CTO with the Personal Management Plan (PMP) prepared by Kerry with her support people. The Plan was created as a workable alternative to the CTO, incorporating both medical and social intervention strategies. Ultimately, the Plan aimed to enhance Kerry’s autonomy over her own life and mental health rather than her feeling sick from the side effects of the forced medication.
Contrary to this Plan, the Tribunal gave the Order to the Health Department and rescheduled the next hearing for 30 September 2020, in 6 months’ time; bringing her to a 9 month CTO period in total (after discharge from Concord Hospital). This was despite the Concord psychiatrist’s statement that medication was probably unnecessary.
The case raises a number of considerable procedural issues, including but not limited to the denial of representation, access to files, and Tribunal independence. Ultimately, these issues turn on a denial of rights to Kerry O’Malley, with the creation of a CTO without any justifying ‘risk of serious harm’ despite her two years of stable independence. The O’Malley case certainly has wide and significant implications. If this lovely woman, a mother of five, cannot be defended against coercive treatment, with access to information and representation, nobody is safe.
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 disturbed by an incident involving a person she knew.
Kerry soon after became more disturbed and sought assistance from the hospital. They injected her with medication and 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.
Mental Tribunal threatens imprisonment for using name
Kerry tells her story
Kerry Appeals Supreme Court 30/4/20
Tribunal Supports Forced Medication Report 1/4/20
Kerry adourned – Health Department Files Opened 11/3/20Forced Medication Again 17/12/19OVERVIEWThe degrading treatment imposed on this gracious 73 year old woman Kerry O’Malley highlights all that is wrong with the mental health system. Over the last 47 years she has been arrested, abandoned to draconian control in a locked hospital and her rights to individual autonomy dismissed.
She has been subjected many times to Community Treatment Orders (CTOs) and forcibly medicated with severe physical and social side effects. Only her sister Margaret and her church have stood beside her. Psychiatrist Dr Yola Lucire defended her against the forced medication despite the weight of the industry norms. Legal aid by the Mental Health Advocacy Service is thoroughly discredited as part of the system.
Kerry is only one of five thousand people in NSW currently having medication enforced under a CTO, being brutalised and degraded by the health system. Many of those people may well have issues and trauma to resolve but are victims further victimised by the system – not dangerous to themselves or others. For themforced injection is the health system’s standard expression of “care”. Meet Kerry here.She presented to the NSW Inquiry on Health on October 31, 2017.
Victory at the Mental Health Review Tribunal 17/10/17
Kerry O’Malley will not be placed on another CTO. This is an important win not just for Kerry, but also for other mental health patients who feel they are silenced under the control of the mental health system. Kerry will move forward with continual support of her friends, her family and the Justice Action team. Media release. Media release download.
Kerry O’Malley – Chemical Restraint in Practice 22/8/17
Kerry O’Malley is back on the CTO despite never having demonstrated threatening behaviour towards herself or any other member of the public. See the full report of the August 22 Mental Health Review Tribunal Hearing for more information on the arguments adopted by Justice Action and the appalling decision of the Mental health Tribunal.
Triumph at the Tribunal 27/05/15
Kerry O’Malley is a 71-year old woman who has been subjected multiple times to Community Treatment Orders (CTOs). In May 2015, Kerry, working with Justice Action, was successful in having the CTO removed by the Mental Health Review Tribunal. Read the full article here.Download media release here.
LATEST NEWS ON MICHAEL’S CASE
“Free Saeed Dezfouli” Campaign
“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”
Health Department Rejected
Media Release October 17, 2017
Mental health consumers have won another battle against the use of forced medication. After years of being subject to Community Treatment Orders (CTO), 71 year old Kerry O’Malley today won agreement from the Mental Health Review Tribunal to reject the CTO against her. A forced injection is the antithesis of health care disgracing all who say nothing.
SAEED POWDER CASE ENDED
Saeed Dezfouli was accused of sending 17 envelopes containing a letter and white powder to politicians, authorities and media organisations including the Premier Gladys Berejiklian, Channel 7 and SBS on January 26, 2019. This was a protest for being held indefinitely, and treated unfairly by Justice Health.
Saeed supported by his brother Masoud and Brett
The case came before the District Court on the issue of his fitness to plead in the trial last week 27th and 28th February and March 2nd. Saeed was allowed to represent himself in court and had called a number of witnesses in his defence, including psychiatrists from the Forensic Hospital and his primary carer Brett Collins, to show that he was fit to plead and the alleged action was a reasonable protest against the unfairness of his situation.
Saeed then withdrew from presenting his case and refused to attend as he had been excluded from an earlier hearing and because the nurses’ statements against him had had the names removed, thereby making it impossible for him to challenge their information. The District Court then ordered that a lawyer should be forced upon him as the Act required him to be represented.
The Commonwealth prosecutor quoted as the precedent for that being correct practice, amazingly, Saeed’s actual case in 2007 when Saeed had the same thing happen. In Saeed’s original case the lawyer refused to accept Saeed’s instructions that he was guilty of lighting a fire, but instead lodged a not guilty due to mental illness plea, over Saeed’s protests. The result was that Saeed is now held indefinitely, so far 18 years, rather than being penalised with a 3.5 year sentence for lighting the fire. Now the lawyers wanted to do it again! He would be insane to want a lawyer! The NSW Law Reform Commission said that this approach was unfair and should be changed. See Report 138. p. 179-180.
The matter resumed on Monday 2nd of March, with three short hearings. A warrant was waiting for Saeed’s arrest to have him dragged before the court as he had refused to leave the hospital to attend. At the afternoon hearing the Commonwealth Director of Public Prosecutions barrister announced that it had withdrawn its prosecution, and would not proceed further. They referred to increased security at the hospital to prevent any reoccurrence.
Saeed thanked his supporters for their assistance. He said that he will use his remaining time at the Forensic Hospital positively, furthering his education as a translator to keep busy and prepare for release. He has been given access to a computer and limited use of the internet to whitelisted websites for research. Justice Action discussed with management how that could be extended.
Media release Wednesday May 16, 2018
As with Saeed Dezfouli, the callous disrespect exposed in Lismore Hospital to dying Miriam Merten will continue. Nothing in Health’s Implementation Plan will change the culture. There will be no ongoing objective accountability, no removal of legislative protections such as s.195 MH Act, no computers and phones in seclusion areas, no alternatives to forced treatment, and no independent consumer advocacy. The timetable shows no urgency for consumers getting on Committees and no structure for electing representatives. The endemic corruption of mental health, with noses in the NSW Health Department’s annual trough of $23 billion is disgraceful to all those who don’t demand structural changes after such an exposure.
Iranian Embassy expresses concerns to Minister Dutton and Premier Berejiklian about Saeed’s life, safety and future in Australia.
See letter from Consulate Section of the Embassy of the Islamic Republic of Iran to Hon Peter Dutton MP (Minister for Home Affairs) and The Hon Gladys Berejiklian (Premier of New South Wales).