Kerry O’Malley is a 74-year-old woman who has spent the past 47 years fighting against forced medication and community treatment orders [CTO]. Her case is now waiting in the New South Wales (NSW) Supreme Court in Australia.
The degrading treatment and removal of individual autonomy she has experienced highlights everything wrong with the Australian mental health system. Kerry is just one of many, but she presents these psychiatric issues well and has uniquely decided to identify herself, and thereby to defend the 5,000 others in the same situation. Here is her story in a five-minute video.
As Kerry’s case was lodged with the NSW Supreme Court, the authorizing tribunal threatened her primary carer with twelve months in prison for supporting her using her own name, but backed off when the bluff didn’t work. Here is the threat and our response. By publicly identifying herself, she is ensuring she is recognised as a real person, not a label, and that is potentially culture changing. The same issue of the entitlement to using your name was raised by ABC’s Background Briefing program with Saeed Dezfouli in a segment called “The man without a name.”
We at Justice Action, in coordination with Kerry, are pursuing a case in the Supreme Court of NSW, and demand she receives compensation for the draconian experience she has endured. Through the publication and awareness of this tragedy and by establishing a common law precedent, we hope to prevent others from being treated the same by Australia’s mental health system.
Kerry’s past struggles over her community treatment orders and her rights
In recent years, Kerry, who has been diagnosed with schizoaffective disorder but still been an active community participant, has had to constantly challenge the CTOs levelled against her by the NSW Health Department. In 2015, Kerry O’Malley and Justice Action successfully removed a CTO through an appeal to the NSW Mental Health Review Tribunal (MHRT). However, it was not long before the Health Department once again imposed a CTO in 2017, and she was administered a long list of drugs against her wishes. Despite the pleas of Kerry and her sister, she was continuously prescribed paliperidone, sodium valproate, and lorazepam. Kerry cannot metabolise many common psychiatric drugs due to her genotype, but this did nothing to faze the practitioners at the facilities she was locked in. She thus had to endure debilitating side effects that included losses in concentration, anxiety, depression, and loss of motivation.
This neglect for personal autonomy is a consistent and pervasive attitude through all levels of the mental health system. No human being should be stripped of their dignity and autonomy in such a way, much less a vulnerable 74-year-old woman.
“I have good supports including my daughter who brought me here today…I also have a lot of support from Church friends and I will see Dr Ben Teoh and a wonderful psychologist in Penrith. My rights have been overlooked”
– Kerry’s statement at the MHRT, 2020
Justice Action and Kerry were again successful in their appeal to the Mental Health Tribunal in 2017, overcoming the control of the Health Department. Kerry’s forced treatment was invasive and was against her benefit, and they accepted Kerry’s plea for an alternative Personal Management Plan [PMP]. Kerry’s PMP was created as a workable alternative to the CTO, incorporating both medical and social intervention strategies. Ultimately, the PMP aimed to enhance Kerry’s autonomy over her own life and mental health rather than feeling sick from the side effects of the forced medication.
On the 17th of December 2019, Kerry was released from hospital again, and sought Justice Action’s assistance in removing the CTO order that was still in effect. Despite the MHRT’s initial consideration of a PMP, the Tribunal decided to uphold the order, to be reconsidered in April.
Yet more forced medication
However, with the MHRT’s recent decision on the 1st of April, Kerry had been unquestionably deprived of her right to give “free and informed consent” to the CTO, as required under Article 25(d) of the UN Convention on the Rights of the Persons with Disabilities. Likewise, Articles 14 and 15 mandate the necessity of informed consent and a freedom of person, especially with regard to involuntary treatment.
Contrary to this, the Tribunal gave the order to the NSW Health Department and rescheduled the next hearing for 30 September 2020, in six months’ time, raising her CTO period to a nine-month total. This was despite the overseeing psychiatrist’s statement that medication was probably unnecessary. Since April of this year, Kerry has thus been forcibly injected. This was a rejection of the “recovery” approach in favour of the biomedical model of treatment, and a continuation of the systemic neglect of the wishes of Kerry and her mental health support team, like many other CTO recipients.
The failures of Australia’s mental health system: Denial of representation or assistance, access to documentation, and entitlement to publicly self-identify
The case of Kerry O’Malley exposes the abuse of vulnerable people by the Australian mental health system. Kerry was told that the law prevented her from being represented before the Mental Health Review Tribunal if she was not a patient. She lives at home, and therefore legally isn’t defined as a patient. Accordingly, the MHRT decided she wasn’t entitled to any assistance, legal or otherwise. This is significant given the coercive powers the Tribunal has over such individuals in the community, which must be carefully and fairly exercised to ensure that people with a disability are not disadvantaged before the Tribunal.
By extension of the above, a lack of representation meant that no individual or representative was permitted to view the Health Department file, despite explicit sections of the law to the contrary. This denial of independent access to Kerry’s Health Department file was upheld, despite being at the centre of her appeal. Even for Kerry herself, the Penrith Health Service only gave her 30 minutes to look at six redacted pages, instead of her whole file as the law requires. The MHRT determined that access to documentation is contingent on the psychiatrist’s discretion.
Kerry was accused of sitting in a chemist shop, confused, for six hours. No evidence was given of her being a risk of serious harm to herself or others. In fact, she has never hurt herself or anyone else. Can the “threat” be so great that Kerry’s bodily autonomy must be refused, that her life be considered not her own?
“Previous to the current CTO, I remained free from hospital admissions for two years. Over these two years, I remained very well. I was prescribed a small dose of Largactil for times when I may become stressed or sleepless. This was the only medication I took over these two years”
– Kerry’s pleas to the Tribunal (2020) prior to the Supreme Court case
Kerry’s case raises a number of considerable procedural issues, including but not limited to the denial of representation, access to files, and Tribunal independence at the MHRT. Ultimately, these issues turned 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. Her case certainly has wide and significant implications for Australia’s mental health system. If a psychiatric individual cannot be defended against coercive treatment, with access to information and representation, nobody is safe.
Clearly the current Mental Health Review Tribunal, as a mechanistic blending of the Australian judicial and health system, functions in a manner that undermines the rights, opinions and power of those that come before it—patient or otherwise—and works to serve itself rather than enabling those seeking to work towards their own recovery.
The need for change
When our elderly citizens must plead for their own rights with little information in the face of a bullying, draconian Health Department, we must demand answers. We must call for reform. Forced medication, adverse to consent and the patient’s own health, is a paradigmatic case of the greatest failings of the mental health treatment system in Australia. Kerry is but one of the 5,000 people every year facing CTOs and forced medication in NSW alone. How many more must suffer before the lived experience of consumers is given priority?
Kerry and Justice Action are currently pursuing a case in the Supreme Court of NSW against her CTO, forced medication, and the dismissal of Kerry’s rights. Justice Action has been threatened by the NSW Mental Health Review Tribunal with a year’s imprisonment and a $5,000 AUD fine for working with Kerry to gain awareness for her case and publicising her struggle.
“The Tribunal is embarrassed by its impending exposure before the Supreme Court and has only self interest in making such threats. We are proud to be standing with her,” said Brett Collins, Justice Action Coordinator.
Kerry’s case is unique not only for her attempt to have the injustice of forced medication repealed, but in exposing the breaches of rights by the NSW Mental Health Review Tribunal and the Australian mental health system for undermining rather than enabling the recovery and development of its consumers.
Justice Action is a not-for-profit community organisation based in Sydney, Australia that focuses on abuses of authority in the criminal justice and mental health systems in Australia. They have worked for over four decades to fight against mistreatment and human rights breaches in Australia for prisoners, involuntary patients and those marginalized and excluded by Australian prisons and hospitals.