Friday, 18 December 2020
The Supreme Court victory in the Kerry O’Malley case has exposed the abuse of vulnerable people by the Australian mental health system. Her treatment highlights the disrespect offered to consumers in the current system. This report documents the responses of the key decision makers to a challenge on the central policy issue of forced medication as a tool of social control.
Following the Kerry O’Malley case, lead organisations including Mental Health Australia, Mental Health Carers NSW, VMIAC and Consumers Health Forum Australia (CHF) have supported the call for change.
The NSW Mental Health Review Tribunal and the NSW Chief Psychiatrist, both being gatekeepers to forced medication, refused to change their views as can be seen from the correspondence underneath.
The Tribunal makes the orders and has a website laying out the rules, and the NSW Chief Psychiatrist wrote the guidelines laying out the law for practitioners in the form of the “Communique 2014: guidelines for clinicians” (appendix A). Neither properly expresses the legal restrictions as laid down by the Supreme Court.
Below is the collated correspondence with the Mental Health Review Tribunal and the Chief Psychiatrist.
Together their responses show a resistance to accept legal rulings restricting the practice of forced medication and to embrace the cultural changes in mental health to recovery and social prescribing. Their responses were vague and both refused to give clear direction to the mental health community.
Justice Action T 02 9283 0123
Trades Hall, Level 2, Suite 204 F 02 9283 0112
4 Goulburn Street mentalhealthteamja@gmail.com
Sydney NSW 2000, Australia
Negotiations with Mental Health Review Tribunal
Mental Health Review Tribunal 27/11/20 letter to Justice Action
On 27 November 2020, his Honour Judge Paul Lakatos, president of MHRT, responded to our request to update its website to reflect legal restrictions on forced medication. He declined and said, “…I am satisfied that the Tribunal’s website accurately sets out the current law in relation to CTOs…”
Justice Action 25/11/20 email, to Mental Health Review Tribunal
On 25 November 2020, Justice Action sent an email to the Mental Health Review Tribunal at the suggestion of the NSW Chief Psychiatrist. We urged it to change the material on its website to reflect the legal precedents regarding forced medication.
25/11/20
His Honour Judge Paul Lakatos SC
President
Mental Health Review Tribunal
Dear President,
We approach you because we wish to establish clear guidelines for clinicians on the use of Community Treatment Orders and forced medication. We remind you of the collaborative relationship we have shared in the past. In 2014 Justice Action worked with the MHRT after the Supreme Court case of A v Mental Health Review Tribunal (No 4) [2014] NSWSC 31, please see here. Following the decision of Lindsay J in that case, Justice Action and the MHRT collaborated to clearly outline the process used by the Tribunal, and thereafter created the resource of the Mental Health Consumer Information Sheet, downloadable from here.
Our working relationship parallels current circumstances, relating to the case of Kerry O’Malley that was successful in the Supreme Court earlier this year. The Kerry O’Malley Case highlights issues within current CTO and forced medication guidelines, and now we hope to work with you again regarding matters brought to our attention by this case.
Pursuant to the Tribunal’s homepage, the role and description of the Tribunal includes the need to receive ‘the very best evidence available when hearing applications and making its decisions.’ Your website provides the following criteria for determining whether a Community Treatment Order (‘CTO’) is appropriate, stating that the Tribunal must be satisfied that:
- “the person would benefit from the CTO as the least restrictive alternative consistent with safe and effective care; and
- the mental health facility has an appropriate treatment plan and is capable of implementing it; and
- if the person has been previously diagnosed as suffering from a mental illness, there must be a history of refusal to accept appropriate treatment.”
Your website also states there must be recognition of the importance of ‘the individual’s right to liberty and safety and to freedom from unnecessary intervention, the individual’s right to treatment, protection and care, and the right of the community to safety and protection.’
Currently your website does not fully reflect the law in this area. Justice Action would like to draw specific attention to our paper ‘Limits of the Power to Forcibly Medicate’ which you will find attached. The paper has closely analysed the law and found it to be far more restrictive than your website leads to believe. We assert that your website should reflect legal precedent.
Below you will also find three emails requesting statements of concerns regarding the Kerry O’Malley case. We received many bids of support from organisations that are recognised both locally and internationally. We reach out to you now on the advice of the NSW Chief Psychiatrist Dr Murray Wright, who directed us to you for further information. Correspondence is attached.
Would you make adjustments to your website to more accurately reflect the law?
Please acknowledge upon receipt.
Yours sincerely,
Lilly Scarborough
Justice Action Mental Health Team Leader
Negotiations with NSW Chief Psychiatrist
NSW Chief Psychiatrist Murray Wright 8/12/20, in response to our email dated 03/12/20
Earlier correspondence also below. The Communique 2014 attached at the end.
On 8 December 2020, Justice Action received a letter from Murray Wright in response to our email dated 3 December 2020. The Chief Psychiatrist reiterated his original position that the Communique of November 2014 “remains relevant as a guide for mental health clinicians and includes appropriate assessments of risk”.
08/12/20
Dear Ms Scarborough
I am writing in response to your email dated 3 December 2020.
As per our previous correspondence on 4 November 2020, the NSW Chief Psychiatrist’s Communique of November 2014 remains relevant in guiding mental health clinicians regarding the considerations in the assessment of risk, and in line with the legislative definitions as provided by the NSW Mental Health Act 2007 and the NSW Mental Health Review Tribunal.
No further action is indicated at this time.
If you wish to further clarify the legislative definitions of serious harm, you should contact the NSW legislative bodies or the NSW Mental Health Review Tribunal.
Yours sincerely
Dr Murray Wright
NSW Chief Psychiatrist
Justice Action email 3/12/20 to NSW Chief Psychiatrist Murray Wright in response to his letter dated 4/11/20
On 3 December 2020, Justice Action responded to the Chief Psychiatrist’s letter dated 4 November 2020 reiterating the importance of receiving his active support to ensure that the law restricting forced medication is properly respected. We stressed the paramount responsibility that the Chief Psychiatrist holds in critically scrutinising and monitoring restrictive clinical practices, and urged him to respond appropriately.
03/12/20
Dear Dr Wright,
We are writing in response to your email dated 4 November 2020.
Thank you for your recommendation to contact the Mental Health Review Tribunal. We have urged it to update its website to reflect the legal precedents restricting the use of forced medication. Please refer to the emails below.
However, we stress the importance of receiving your active support to ensure legal precedents restricting forced medication are respected. The lack of guidance on ‘the risk of serious harm’ and examination of less restrictive alternatives under the current Communique have directly affected people like Kerry O’Malley. She is just one example of many patients who have been severely mistreated under the present Communique.
This matter is clearly your responsibility. We have examined the role of the Chief Psychiatrist as delineated by the NSW Ministry of Health and found that you must provide:
- High level advice to the Director of Mental Health on the mental health needs of the NSW population;
- Professional leadership to NSW mental health clinicians across all areas; and
- Clinical input to policy development and implementation to improve the mental health status of target groups.
The statutory obligations under other Australian jurisdictions reveal that the Chief Psychiatrist is crucially responsible to continually improve the quality and safety of mental health treatments. This involves critical scrutiny of restrictive practices, and the provision of accurate and useful information to mental health practitioners.
The Communique of November 2014 is the basis upon which clinicians and the NSW Health Department refer to when forced medication occurs. However, contrary to your previous response, we do not believe the Communique remains relevant and is in fact misleading. While the Communique provides a list of situations where harm may arise, there is no clear standard to determine what magnitude of consequences constitutes “serious harm”.
This was asserted in our report ‘Limits of the Power to Forcibly Medicate’ (page 16) and our ‘Survival Manual for Health Department Escapees’ (https://docs.google.com/document/d/1zJHg_-aUQmAh1dbQE3kRecPNOOVnQunFdf2t7fWfrvE/edit?usp=sharing; page 2). Further, the obligation to negate less restrictive alternative treatments had not been mentioned in the information sheet on the Communique as provided by the NSW Ministry of Health.
The 2014 NSW Chief Psychiatrist’s Communique is seriously misleading and does not adequately define the limits of the power that the law has permitted for the Health Department to forcibly medicate individuals. We ask that this be withdrawn and replaced with a new Communique that reflects the position of the courts in imposing highly restrictive threshold requirements that must be met before an order for such an invasive intervention can be lawfully made.
Please acknowledge upon receipt.
Kind Regards,
Lilly Scarborough
Justice Action Mental Health Team Leader
NSW Chief Psychiatrist Murray Wright 4/11/20, in response to our email dated 28/10/20
Justice Action received an email on 4 November 2020 from Dr Murray Wright reaffirming that the Communique of November 2014 remains relevant and is consistent with the NSW legislation. He recommended that we contact the Mental Health Review Tribunal or NSW legislative bodies for more information on the threshold requirements in the consideration of involuntary treatment.
04/11/20
Dear Ms Scarborough
I am writing in response to your email dated 28 October 2020.
The NSW Chief Psychiatrist’s Communique of November 2014 was intended to guide mental health clinicians making decisions regarding involuntary treatment under the NSW Mental Health Act 2007, in particular regarding the ‘risk of serious harm’ criterion. It includes information regarding the types of harm that should be considered, and the need to undertake a comprehensive assessment of the person, including the history of mental and physical illness, family history, psychosocial factors, risk assessment and the consideration of the risk of harm without medical treatment.
The communique remains relevant and in line with the definitions as provided by the NSW Mental Health Act 2007 and the independent quasi-judicial body constituted under that Act, namely the NSW Mental Health Review Tribunal.
Should you wish to pursue further clarity or changes of the threshold requirements in the consideration of involuntary treatment as per the NSW Mental Health Act 2007, I would recommend seeking information from the judicial bodies involved, such as the NSW Mental Health Review Tribunal or NSW legislative bodies.
Regards
Dr Murray Wright
NSW Chief Psychiatrist
Mental Health Branch
Justice Action email 28/10/20 to NSW Chief Psychiatrist Murray Wright in response to the Chief Psychiatrist’s letter dated 28/10/2020
On 28 October 2020 Justice Action emailed back to stress the importance of receiving a response to our request for the withdrawal of the NSW Communique of November 2014. We believe this Communique provides a misleading guideline on the practice of forced medication.
28/10/20
Dear Dr Wright
Thank you for your email today, the 28th October. We appreciate your concern for the respectful management for vulnerable people.
We ask you to respond to the 3rd paragraph of our email, underneath, specifically to withdraw and redraft the misleading NSW Chief Psychiatrist’s Communique of 2014.
We urgently seek your engagement on this matter.
Please acknowledge on receipt.
Lily Scarborough
Justice Action Mental Health Team Leader
NSW Chief Psychiatrist Murray Wright 28/11/20, in response to our email dated 14/10/20
We received a letter from the Chief Psychiatrist on 28 November 2020 stating that he is unable to comment on individual cases but acknowledges the concerns surrounding the mismanagement of vulnerable people living with mental illness.
28/10/20
Dear Ms Scarborough
Thank you for your recent correspondence on 14 October 2020 and more recently on 22 October 2020, regarding the treatment of mental health patients in the community.
While I cannot comment on specific cases, I acknowledge your concerns regarding the humane and respectful management of vulnerable people within our community, including those with mental illness.
NSW promotes the use of trauma informed care in the management of patients, particularly those with mental illness. This is a strengths-based approach that reflects the principles of recovery-oriented and person-centred care.
Involuntary treatment such as community treatment orders (CTOs) must fulfil strict criteria, including:
- That there is no other care of a less restrictive kind that is appropriate and reasonably available
- That the person would benefit from it as the least restrictive alternative, consistent with safe and effective care
- That the treatment plan is appropriate and capable of being implemented and
- That if the affected person has been previously diagnosed as suffering from a mental illness, the person has a history of refusing treatment.
The review and determination of an application for involuntary treatment is performed by the Mental Health Review Tribunal. The Mental Health Review Tribunal is an independent
tribunal that safeguards the civil liberties of persons under the NSW Mental Health Act, 2007, and ensures that people living with mental illness receives the least restrictive care that is consistent with safe and effective care.
Thank you again for writing, and for advocating for the rights of vulnerable people within our Community.
Yours sincerely
Dr Murray Wright
NSW Chief Psychiatrist, NSW Ministry of Health
Justice Action email 14/10/20 to NSW Chief Psychiatrist Murray Wright
On October 14 2020, Justice Action emailed the Chief Psychiatrist requesting that he withdraw and redraft the Communique of November 2014 which does not adequately define the legal limits of power surrounding forced medication. We attached a copy of our draft report on Forced Medication and an analysis of the current legal precedent on mental health law.
14/10/20
Dear Dr Wright,
As you would be aware, the case of Kerry O’Malley was recently decided in her favour in the Supreme Court. Despite the victory for her personally, the Court was denied the opportunity to establish the limits of the power to forcibly medicate individuals.
We have prepared an analysis of the current mental health law that allows for the imposition of Community Treatment Orders on ‘mentally ill’ persons.
The NSW Chief Psychiatrist’s Communique of 2014 is misleading and does not adequately define the limits of the power that the law has permitted for the Health Department to forcibly medicate individuals. We ask that this be withdrawn and replaced with a new Communique that reflects the position of the courts in imposing highly restrictive threshold requirements that must be met before an order for such an invasive intervention can be lawfully made.
Would you do that?
Also, please find attached a draft report on Australia-wide responses to lobbying for Kerry O’Malley’s case including your response. If you wish to consider your response now, we would appreciate that.
Please acknowledge upon receipt,
Kind Regards
Lilly Scarborough
Justice Action Mental Health Team Leader
Appendix A
The 2014 Communique of the NSW Chief Psychiatrist
92 New South Wales Department of Health, Factsheets- Community Practitioners (Web Page), <https://www.health.nsw.gov.au/mentalhealth/resources/Factsheets/community-medical-practitioners.pdf>.
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