Call for withdrawal of the Chief Psychiatrist’s Communique 2014

The campaign against the Chief Psychiatrist’s Communique 2014 was sent to Bronwyn Taylor MLC – NSW Minister for Mental Health, Dr. Murray Wright – Chief Psychiatrist NSW Health and Judge Paul Lakatos SC – President, Mental Health Review Tribunal. We are still awaiting a response from Dr. Murray Wright and Bronwyn Taylor MLC.

As you might be aware, the Greens spokesperson for Mental Health, Cate Faehrmann questioned the Minister for Mental Health, Bronnie Taylor on March 18, 2021 regarding the NSW Chief Psychiatrist’s Communique of November 2014 and the need to update it to ensure there are clearer definitions of ‘serious harm’ to guide community health practitioners when making decisions regarding forced medication. 

We have since had a chance to examine the response she supplied (see report below). In her reply, the Minister explains that the Communique was written in response to a coronial recommendation following the inquest into the deaths of Nicholas Waterlow and Chloe Heuston, and that its purpose is to provide guidance to mental health clinicians when making decisions about involuntary treatment under the Mental Health Act 2007 regarding the ‘risk of serious harm’ criterion.  The Communique in its current form is misleading and unjustified and needs to be revised to address the human rights issues within the current Community Treatment Order (CTO) and forced medication guidelines as highlighted by the Kerry O’Malley Case. It is our position that any court challenge like Kerry O’Malley’s against compulsory treatment orders, including forced medication, would prove successful. We are currently working with another client who is being detained under a CTO and in the process of appealing the Tribunals decision. He is prepared to speak openly about his experience. No doubt there will be others to follow.

We request that you examine the analysis presented below and reconsider your response dated 27 November, 2020. As presented in our correspondence on 25 November, 2020, the information provided on your website is misleading and contributes to the misrepresentation of this very important issue. 

Given that psychiatric medication only reduces the experience of symptoms at best and never addresses an underlying disease process, there is an inherent risk of harm in administering them when they should only be used as a last resort. Other alternatives should be employed where possible, and especially if the consumer wants support and alternatives.

Does the government fund NSW mental health services to provide reasonable alternatives to medication for those who want them, as is suggested by the Mental Health Act? If not, does this mean more people are involuntarily medicated with toxic medication against their will than would otherwise be the case? Attached is a critical literature review about neuroleptic drugs commissioned by the National Mental Health Consumer and Carer Forum (NMHCCF) under the auspices of Mental Health Australia. 

The Victorian Royal Commission on Mental Health recently proposed development of those choices, and the eradication of restrictive practices. It links the underfunding of the choices to forced treatment. We have a draft analysis of what it said here.

Ministerial defence of the Chief Psychiatrist’s Communique 2014

Coronial Recommendations: Antony Waterlow case

The Greens spokesperson for Mental Health Cate Faehrmann asked the Minister for Mental Health Bronnie Taylor this Question Without Notice on March 18, 2021.

I direct my question to the Minister for Mental Health, Regional Youth and Women. In July 2020 the New South Wales Supreme Court ruled on NSW Health forcibly injecting 74-year-old Kerry O’Malley, with the court ordering that NSW Health pay Ms O’Malley’s costs and to stop forcibly injecting her after doing so for 47 years. Has the Minister met with the NSW Chief Psychiatrist to discuss his November 2014 communique, and the need to update it, to ensure there are clearer definitions of “serious harm” to guide community health practitioners when making decisions regarding involuntary treatment decisions, including forced injections?                                                                                                                            

The Minister responded on April 9, 2021 (attached) 

As Minister for Mental Health, I meet with the Chief Psychiatrist regularly and have discussed this matter with him. The 2014 communique provides guidance to mental health clinicians who are making decisions about involuntary treatment under the Mental Health Act 2007 regarding the ‘risk of serious harm’ criterion. It makes no comment on forced medication.                               

The communique was written in response to a coronial recommendation following the inquest into the tragic deaths of Nicholas Waterlow and Chloe Heuston. It was written as a reminder to clinicians about good practice in terms of determining risk of harm.      

The content of the communique is in line with the legislative definitions as provided by the NSW Mental Health Act 2007. There is no intention to revise the communique. 

We have reviewed the Waterlow case. 

Here are the Coroner’s Findings and Recommendations. 

Despite the Recommendations there were no legislative amendments as a result of the case. It was the final Recommendation which caused the Communique (as the Minister said):

That NSW Health design and distribute an information booklet setting out advice (that includes an emphasis on the availability of community treatment orders) for families, carers and friends attempting to support persons suffering from mental illness/disorder, who have been threatened by or are fearful of a person who may be suffering a mental illness/disorder. 

It is notable that the Recommendation is not directed at clinicians, however the Communique is.

What is clear from the Waterlow case is that he had threatened family members, neighbours and friends with death and rape on numerous occasions, over a number of years. He clearly could have been compulsorily treated under the existing law. He gestured with stabbing motions at neighbours with a kitchen knife. He was actually charged criminally with the sex threat. He was using drugs and alcohol. Everyone including the psychiatrists agreed that he was dangerous and unstable. The references in the Coroners findings are below. 

The only reason that he wasn’t scheduled and taken to hospital was the fact that he presented gently and respectfully to the health professionals, and stayed in contact. However he was insistent that he didn’t want antipsychotic medication. The effectiveness of the psychologist’s intervention wasn’t reported.

Mental health law on the Limits of the Power to Forcibly Medicate has been carefully analysed.

That analysis has been distributed to everyone in authority in mental health including the Mental Health Review Tribunal and the Chief Psychiatrist and its accuracy has not been challenged.  The law has not been changed and the NSW Supreme Court has decided its meaning. The Communique is misleading to clinicians as it suggests that the words “serious” and “necessary” haven’t been defined by the cases. Gentle people like Kerry O’Malley are abused as a consequence.

The Waterlow case showed that the health professionals made passive judgments however the law already empowered them to act. He clearly represented a risk to life and safety.

Neither the Attorney General nor the Mental Health Minister brought in the  legislative changes as suggested by the Coroner. That fact supports the position that the law already covered the situation with Waterlow. 

The Coroner explicitly stated in his findings at p.33 that he wasn’t proposing tests for compulsory treatment but would leave it to Parliament. Parliament didn’t change the law.

“The debate within the medical profession, and elsewhere, as to most appropriate tests to be applied in respect of compulsory treatment of the mentally ill is not something that can be resolved by me in this case. That will eventually be a matter for the Parliament. The evidence before me shows that there are legislative proposals before the Victorian, Tasmanian and Australian Capital Territory Legislatures that provide various models to be considered by those responsible for deciding how best to resolve this difficult issue”. 

Index to Coroner’s Findings

The fact that Antony threatened others

  • Page 4: Antony was “physically violent” to his brother and “repeatedly threatened to kill family members and close associates”
  • Page 8: Repeated accounts from family and carers noted Antony’s psychotic symptoms as “erratic, threatening behaviour” which were not given sufficient weight by his doctors
  • Page 9: Verbally aggressive towards other people
  • Page 10: Dr Rogers reported he was “disturbed, depressed, anxious and psychotic” at his first two appointments
  • Page 11: Antony became “more violent and bizarre” in 2004 leading to his arrest for malicious damage
  • Page 11: making stabbing motions with a large kitchen knife towards neighbours at a dinner party, banging loudly on neighbours doors
  • Page 11: “paranoid, angry and aggressive” whilst living with his grandmother, who later sent him back to Australia after being “scared of him”
  • Page 12: “threatened to kill members of the family” and an assault against brother Luke was reported to the Acute Care Team.
  • Page 12: Antony was “hostile and had threatened to use a knife on him [Nick]” when Nick saw him 17 October 2006
  • Page 12: Antony informed Gay Bell that it was “getting to the point where he would have to kill” 
  • Page 17: Antony described relationship with father as “verbally and physically abusive”
  • Page 18: Gaye Bell explained that her and her husband were frightened in their house 
  • Page 19: Dr Powell explained he was “illogical at times, and tangential, he had ideas of reference and persecution”
  • Page 20: Antony reported that he and another a male fought and punched each other 
  • Page 21: Nick contacted Dr Powell to inform Antony had been aggressive towards and that his son may be at risk and asked for a period of involuntary treatment be warranted. Gaye Bell also informed Antony was catatonic the previous night and verbally aggressive
  • Page 21: diagnostic impression from Mental State Examination (MSE) was that Antony had difficulty controlling angry 
  • Page 24: following assessment in accordance with Section 23 of MHA 1990, Dr McGeorge formed the view that Antony was psychotic and a serious risk to himself and others
  • Page 25: Antony had threatened to rape a friend leading to AVO application 
  • Page 28: Dr Giuffrida’s review 6 months prior to the murders: “constantly tormented by derogatory, threatening and commanding hallucinations, which reinforce his delusional fears and caused him to entertain violent thoughts of harming or killing members of his family or friends”

The reliance on doctors to assess whether a person is at risk of ‘serious harm’ to themselves or others

  • Dr Ryan on the medical treatment in Antony’s situation:
    • “We know that however that at all, or almost all, clinical encounters, Mr Waterlow believed that he did not have schizophrenia or any other psychotic illnesses, and that his perceived experiences of persecution reflected the reality of the world around him. It seems likely that it was on this basis – the delusional belief that he was in fact being persecuted – that he refused antipsychotic medication (p.30)… Mr Waterlow lacked, at least, the ability to use and weigh relevant information part of the process of making the decision, and as such lacked decision-making capacity as defined by common law.” (p.31)
      • Mental health practitioners use standardised criteria in the realm of psychology and psychiatry to determine whether an individual is experiencing one or multiple symptoms, and whether a diagnosis of mental illness is warranted
      • Pathologize an individual’s lived experience with mental illness and create arbitrary distinctions for who is classified as mentally ill and the subsequent restrictions they are subjected to individual circumstances and needs such as whether the individual believes their symptoms are causing a significant amount of distress or impairment?

The fact that Antony could be good at presenting

  • Page 6: In His Honours view, Antony had demonstrated insight into his illness, in particular, his condition at the time of the offences and expressed genuine remorse
  • Page 8: Antony tended to present well in hospital.
  • Page 18: he attended the interview on time, noted to be “polite, calm and engaging”, noted to articulate and well spoken, cooperative and able to reflect on himself: admitting  he became increasingly paranoid and acknowledges his behaviour is “irrational” and “unreasonable.”
  • Page 21: notes record: usual presentation, well kempt, remains insightful to a fairly high level, no obvious delusions. “Antony presented as punctual, pleasant and appropriate:
  • Page 22: appears more relaxed and less suspicious than last assessment.
  • Page 25: refusal of compulsory detainment because: “he was not presenting signs of mental health, did not appear an acute risk to himself or others.”