Malcolm Baker found himself back at Long Bay Hospital and was desperate to stop being involuntarily injected. On the 6th July 2016 he was injected again. He was injected with antipsychotic medication although it was known at the time that barrister Ben Fogarty and psychiatrist Dr. Yola Lucire had been briefed to oppose.
Ultimately the hearing on the 24th July 2016 was a success as the Tribunal found that they were not persuaded on the evidence that Malcolm Baker presented a serious risk of harm to himself or others, thus there was no justification for forced medication.
Background of the hearing
On the 8th of June 2016 the Director-General under s 55(3) of the Mental Health (Forensic Provisions) Act 1990 (NSW) ordered Malcolm Baker to be transferred to the mental health facility at Long Bay Correctional Centre without his consent on the grounds of having a mental illness. He was being held at the Metropolitan Remand and Reception Centre (MRRC) at Silverwater prior to this transfer.
The transfer was challenged at the Mental Health Review Tribunal on the 24th July 2016 by a team of passionate advocates who argued that Malcolm Baker was not a mentally ill person as per the definition in s 14 of the Mental Health Act 2007 (NSW). Malcolm Baker presented himself reasonably to the tribunal. Ultimately the Tribunal found that whilst Malcolm Baker has the symptoms of a mental illness he did not satisfy the definition in s 14 as there was no risk of serious harm to Malcolm Baker or others to make his transfer at and treatment necessary.
Although this outcome is a huge victory for Malcolm Baker, it raises serious concerns about the criminal justice system and its successful deliverance of mental health programs. It was just last year that Malcolm was brought before the Tribunal to answer the exact same question.
Lack of Support
One of the most concerning issues surrounding the circumstances of Malcolm Baker’s hearing before the Mental Health Review Tribunal was the absence of NGO, government and personal support that would otherwise be provided to individuals facing similarly high levels of critical questioning. Individuals and organisations whose role it is to assist vulnerable individuals like Malcolm Baker were nowhere to be seen.
Mental Health Advocacy Service:
In preparation for the hearing Malcolm Baker applied for the assistance of legal aid. On the NSW Legal Aid form, in answer to the question, ‘Do you have a solicitor that you want to represent you and who will agree to accept a grant of legal aid (if it is made)?’ Malcolm Baker provided the details of a barrister he wished to represent him. On the 11th July 2016 Malcolm Baker received a response to his application. He was granted aid but the legal assistance was to be provided by the Mental Health Advocacy Service (MHAS) rather than by the barrister who he had retained for his case. He was told that this was a consequence of the limited resources available to fund private counsel.
This raises a number of concerns. Firstly, it raises doubts about the quality of legal services that would have been provided by the Mental Health Advocacy Service. The implication of the response suggests that the services provided by the MHAS were less and therefore warranted less financial expenditure.
The response fails to consider whether or not the barrister may have accepted whatever grant Legal Aid was prepared to give to cover the retainer. Secondly, it provides yet another impediment to consumer choice – particularly crucial when dealing with issues surrounding someone’s mental health. In these instances it is paramount that the client has someone they can trust represent them. It was later explained that Malcolm Baker had been the recipient of the services of MHAS in the past but did not feel ‘properly supported’ by them.
Justice Action arranged instead to cover the expenses of the retainer for the barrister Ben Fogarty at a reduced rate.
It was then asked whether the legal aid funding allocated for Malcolm Baker could be redistributed to cover the expenses of providing for an independent psychiatrist support, namely Dr Lucire. Retaining a psychiatrist would be ordinary practice of the MHAS and thus an expected expense.
Following the successful result for Malcom, Justice Action reached out to Legal Aid NSW for an explanation as to their denial of Malcolm’s chosen barrister. Justice Action also requested that Legal Aid NSW provide further information so as to ensure this particular outcome did not occur again. This was done to clarify a working relationship that should be beneficial for both Justice Action and Legal Aid NSW. A copy of the letter sent to NSW Legal Aid is available here
Following receipt of the letter, the Mental Health Advocacy Service (MHAS) replied with little concern or empathy for Malcolm’s situation. In their brief reply, they ‘helpfully’ redirected us to an application for Legal Aid funding. Their response did not acknowledge our request for a long-term collaborative effort between our two organisations to improve the delivery of legal services in corrective services, ease of access to appropriate funding and to prevent further violations of well-recognised human rights.
The fact that this was Malcolm Baker’s third hearing before the Tribunal is concerning. It illustrates there is a cultural problem in Justice Health that attempts to overpower vulnerable people.
The Department also uses their power to forcibly medicate as a management tool rather than speaking to individuals like Malcolm Baker as human beings and addressing problems that lead to his lack of cooperation and opinionated objections.
Throughout the lead up to the hearing Justice Health thwarted Malcolm Baker’s capacity to defend himself. The hospital refused to grant the independent psychiatrist access to Malcolm’s medical records. Access to the Justice Health report was also not available until the hearing.
These actions suggest that not only is Justice Health not serious about providing quality and informed health services to its patients, but that it is willing to stifle efforts for the patients to seek beneficial outcomes for themselves. These recent actions by Justice Health suggest that it is frightened when its own practices are questioned and are worried about being exposed. This leads to a refusal to collaborate with the patients support team.
During the MHRT hearing Malcolm Baker’s designated carer, Brett Collins, made clear that he was happy to assist and be part of the solution including future assistance with problems and negotiating further treatment if and when it is required. We have since reached out to Justice Health seeking to work with them and organise a meeting. A copy of the letter sent to Justice Health is available here.
Being the primary drivers of the application to retain Malcolm in the mental health facility at Long Bay hospital, we look forward to a more detailed response from Justice Health (JH) in regards to our letter. We thank JH for acknowledging that they have received this letter. In their next response, we hope that JH acknowledge and allow our request for a meeting to discuss strategies and policies that can be implemented to avoid wrongful retention of involuntary patients in the future.
Community Reference Group:
The Community Reference Group (CRG) has also failed to provide assistance. In the past, current prisoners could access meetings of the CRG. Now however, they are excluded. This illustrates that the CRG is no longer making themselves receptive to the people it strives to assist. This sentiment is also evident in the unwillingness of the CRG to respond to topical issues affecting prisoners. This was apparent when they provided no comment to the Inspector of Custodial Service’s Full House Report, which highlighted the overcrowding in NSW correctional centres.
It is suggested that the lack of willingness to be receptive and vocal on prisoner issues stems from a structural problem. The CRG draws it’s funding from government. As a result its actions, and/or lack thereof with regards to the championing of prisoner issues suggests that its status is compromised. A failure to properly critique and provide assessments of government policy is immensely significant as it illustrates an inability to properly serve its purpose.
The letter sent to the Community Reference Group is available here.
Through the advisory role they hold with Justice Health, the CRG must provide information and confront the culture and abuse of power by health personnel. With a significant portion of this abuse concentrated within the prison system, the minimal amount of responses from individual members to the letter can only be described as disheartening. We look forward to receiving more replies from the CRG as we hope to discuss our membership in the CRG. A membership that will be mutually beneficial as we our uniquely qualified to provide valuable insights into the prisoner health system with the experience we have accumulated by working with people such as Malcolm.
Corrective Services NSW:
By not adhering to the ruling of the Mental Health Review Tribunal on the 24th of July 2016, the detainment of Malcolm in the mental health facility at Long Bay, Corrective Services NSW (CSNSW) added to the corruption and abuse of power within the prison system. Following our recent success with transferring Malcolm out of the facility, we followed up with CSNSW to ensure that Malcolm was allowed to return to South Coast Correctional Centre (SCCC) in Nowra.
We would like to thank CSNSW for promptly acknowledging and replying to our letter. It can be confirmed that over the next couple of months Malcolm will be transferred back into the positive environment at SCCC following a temporary stay at the “mental health step down units at the Metropolitan Remand and Reception Centre.”