The right not to be hurt

A tiny Supreme Court judgment from a month back has appeared on Austlii. Daniels v Bayside Health [2008] VSC 472 involves an unrepresented man who is convinced that his son’s health and, possibly, his life is in danger from treatment he is receiving as an involuntary patient under the Mental Health Act 1986 at Thomas Embling Hospital. Bernard Daniels has been told be Dr Yolanda Lucire, a Sydney doctor, that his son Garth has been misdiagnosed as a schizophrenic and instead has had a variety of other conditions for the last ten years. Her opinion is that the treatment Garth is receiving, valium and zuclopenthixol, is likely to cause harm to him, in particular to his muscles. The treating doctors acknowledge that the medicine has its risks, but dispute the doctor’s diagnosis of a complicating condition called neuroleptic malignant syndrome.

Daniels senior lodged a review with the Mental Health Review Board but turned up at the Supreme Court because he wanted the medication stopped prior to that review. The Mental Health Act requires that all patients (and, presumably, as appropriate, their guardians) be told their rights. Recent new regulations specify that involuntary patients be told of their Charter rights in these terms:

The Victorian Charter of Human Rights and Responsibilities Act 2006 seeks to promote and protect certain human rights. The Charter defines the protected rights and requires public mental health services to act compatibly with these rights. The Charter also specifies when and how rights can be limited by law. For example, under the Mental Health Act 1986 you may be detained in a mental health service if it is necessary to protect your health or safety or the safety of others. However, any restrictions on your liberty and any interference with your rights, privacy, dignity and self-respect must be kept to the minimum necessary in the circumstances. If you have any questions about the Charter or how it might affect your treatment, contact one of the organisations described at the end of this statement.

This does a nice, if inevitably inadequate job, of explaining the nuances of the Charter. It doesn’t, for example, address the complex issue of whether the Charter places some fundamental new limits on treatment, notably when the treatment is a threat to someone’s health, as Lucire alleges in this case. The statement directs patients wanting more information to VEOHRC. It’d be interesting to know what they’d say in this circumstance.

Daniels senior raised the Charter in these terms:

In the course of his argument, Mr Daniels has raised a large number of matters, many of which are not really matters which I need or can determine at this stage. He raised questions of procedural fairness, the entitlement of his son not to suffer torture under the Charter of Human Rights and Responsibilities 2006, the entitlement of his son not to suffer death or to be at risk of death under the Charter.

Not a bad effort. Daniels has obviously read Charter ss. 9 and 10. The difficulty for him, alas, was that, testifying by phone before the Supreme COurt, Lucire didn’t support the claims of threats to Garth’s life or that there was an intermediate risk, e.g. to his heart muscles. 

Daniels’s reference to procedural fairness – it’s not clear what fairness issues were at stake – was presumably to Charter s. 24. At the Protecting Human Rights conference, I observed that the Attorney-General, intervening in a Mental Health Review Board matter, was described in the judgment as submitting that the right to a fair hearing doesn’t apply to mental health matters. However, Joanna Davidson, in the audience, publicly and firmly objected to my ‘mischaracterisation’, insisting that the issue only arose in passing and that she only canvassed the law briefly. Her vehemence carried the clear implication, before an audience with considerable interest in this matter, that the Attorney-General would never take such a miserly stance. That very public exchange would be quite a relief to many stakeholders in mental health, including Daniels. 

Justice David Byrne treated the matter with appropriate flexibility, deeming it to be an application for an interim injunction for a variation to Garth’s treatment order (even though no application was actually filed.) However, the application was dismissed:

In the circumstances and given the limited area of my concern in this type of application, I find myself not satisfied that the current medication is so dangerous as to warrant the intervention of the court, assuming that the court has the power to intervene in such a case. Accordingly, the application for interim injunctive relief must fail.

While Bryne’s stance is understandable, I’m not convinced that the test applied is appropriate in light of the Charter. While it’s clear that findings weren’t open about breaches of Garth’s rights to life and against degrading treatment, I think that things are a little different given a further Charter right:

Positive obligations under the Charter

Amidst all the excitement here in Victoria, I’ve been neglecting overseas developments. Two cases this week are interesting in the light they shed on the positive obligations in the Charter. At the Protecting Human Rights Conference, I called for the repeal of some nineteen sections of the Charter, including the definitions section. The latter call was a touch painful, because although nearly all the definitions in Charter s. 3 are bad, there is one important but neglected one:

3(1) In this Charter-… act includes a failure to act and a proposal to act

The only Charter provision that uses the word ‘act’ (in its non-statute sense) is the conduct mandate:

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

This section accordingly sometimes make it unlawful for a public authority to do nothing. I suspect, though, that even without Charter s. 3, the conduct mandate would oblige the government to act in certain situations. The extent of those obligations is quite interesting.

In one case being argued this week before the United States Supreme Court, the issue concerns the obligations of governments to promote free expression by weird-sounding religious groups. One such groups of oddballs, the Fraternal Order of Eagles, likes to donate massive stone monuments of the Ten Commandments for display in public parks. One of its monuments has been duly displayed in a public park in Pleasant Grove, Utah for the last thirty-eight years. The plaintiffs before the Supreme Court are another group of oddballs, Summum, who want the agency running the public park to accept their donated stone monument containing these Seven Aphorisms:

1. SUMMUM is MIND, thought; the universe is a mental creation.
2. As above, so below; as below, so above.
3. Nothing rests; everything moves; everything vibrates.
4. Everything is dual; everything has an opposing point; everything has its pair of opposites; like and unlike are the same; opposites are identical in nature, but different in degree; extremes bond; all truths are but partial truths; all paradoxes may be reconciled.
5. Everything flows out and in; everything has its season; all things rise and fall; the pendulum swing expresses itself in everything; the measure of the swing to the right is the measure of the swing to the left; rhythm compensates.
6. Every cause has its effect; every effect has its cause; everything happens according to Law; Chance is just a name for Law not recognized; there are many fields of causation, but nothing escapes the Law of Destiny.
7. Gender is in everything; everything has its masculine and feminine principles; Gender manifests on all levels.

According to Summum, these are the real message Moses wanted to bring down from Mt Sinai. He was all ready to do so when he noticed the Golden Calf, raced back up the mountain and came back with a dumbed-down translation in the form of the decalogue of depressing and turgidly expressed ‘Thou Shalt Nots’ on the Eagles’ monument. Kinda like the difference between the Consultation Committee’s draft of the Charter and the version that got enacted after the meddlers did their bit. Summum’s case is that the Pleasant Grove City Council is obliged, if it is going to continue to display the Eagles’ version, to also display Summum’s, lest it commit the sin (and First Amendment infringement) of content-based regulation of public speech. The Council’s response is that the Eagles’s monument isn’t public speech, but rather government speech, which can reflect the government’s views. That’s a pretty dicey argument to make in the US, where the government is barred from establishing a religion. Not so scary here for the Victorian government. The appeal is from a 10th Circuit Court of Appeals decision in Sunnum’s favour.

The other case, In Re E (a child) [2008] UKHL 66, decided today by the House of Lords, concerns the limits to the government’s obligation to protect people from things that they have a right against, specifically the European equivalent to this Charter right:

10 A person must not be-… (b) treated or punished in a cruel, inhuman or degrading way

The case concerned a horrific Belfast saga back in 2001, where loyalists in a North Belfast neighbourhood targetted Catholic children walking to and from school down Ardoyne Road, which passes through a Protestant estate in a predominantly Catholic area. There was no challenge to the police’s initial step of banning kids from the road altogether. Rather, the case concerned their longer term strategy:

When the new term commenced in September the police had been able to consider what strategy they would follow and what expedients they might adopt. A decision was made by them that their overriding priority was to do everything possible to enable the parents to take their children to school on foot along Ardoyne Road…. The expedient adopted was to station police and military vehicles along both sides of the road, creating a corridor through which the group of children and parents could walk. Police and soldiers were deployed on the protesters’ side and escorting police officers carrying long shields accompanied the group to protect them from missiles. This tactic proved successful, to the extent that no injuries were sustained by any children.

It was argued and accepted that this tactic, while protecting the kids’ lives, still exposed them to degrading treatment. At issue was whether the police should have done more to protect the kids, by barring the protesters from Ardoyne Road altogether.

The sex offenders’ challenge

My guess last post was right. (Of course, presumably the whole legal community knew this, but not me.) It’s on!:

Two convicted sex offenders are invoking Victoria’s human rights charter to appeal against being given an extended supervision order in what is a legal first.

One of the applicants is a child sex offender jailed for more than 10 years for his crimes. The man, whose name is suppressed, was convicted for sex crimes against his teenage daughter, another teenage girl and his adult partner. He was given a 10-year extended supervision order when he finished his jail term after a County Court judge found a “high degree of probability” he was likely to further offend. However, his lawyer Graham Thomas SC told a Court of Appeal hearing today his client was not a high-risk child sex offender and therefore not eligible to to be subject to the order.

Mr Thomas also said the sentencing judge had indicated she did not believe the man was suitable for an order but later changed her position. But counsel representing the secretary to the Department of Justice, David Grace QC, said the man’s crimes were premeditated and opportunistic. Mr Grace said the sentencing judge included in her reasons the fact the man had shown a lack of insight into his behaviour by denying his wrongdoing. He said the man jumped bail on the day he was due to attend his court hearing on his application for an extended supervision order and had refused to take part in a sex offenders program, despite being offered many times. Mr Grace said the man continued to “thumb his nose up at authority” and suggested he tried to create relationships with females with children while he was in jail so he could groom them for sexual offending.

The second sex offender is appealing an eight-year extended supervision order imposed on him by the County Court on the basis it is too long. The man, whose name is also suppressed, was jailed for more than a year for indecent assault and will also use the charter to argue his case.

Victoria became the first Australian state to implement a Charter of Human Rights and Responsibilities on January 1 and it is the first time it will be considered by Victoria’s appeal court. The hearing before Justices Geoffrey Nettle, President Chris Maxwell and Mark Weinberg continues tomorrow.

Um, it’s actually the sixth time the Charter will be ‘considered’ by Victoria’s appeal court. The appeal court cited the Charter once in 2006 and four times again this year, including in its appalling Underbelly decision. Here’s hoping, though, that this will be the first time the Court actually does the Charter justice, in analysis if not in the final result. Interestingly, all three judges in this hearing are Charter virgins. The case, argued today, is listed for a second day of argument tomorrow. [EDIT: And here's the Hun's take. The tabloid refers to the offenders as 'sex fiends' (fair enough, I guess) and, as is the norm, gives more details of the legal argument than the Age.]

But what is being argued? The article is tantalisingly vague. I can see three types of rights arguments could be made about extended supervision orders (ESOs):

The right to jury nullification

I’m absolutely thrilled at today’s verdict in the trial of Joseph ‘Jihad Jack’ Thomas. This is the second time a jury has examined the case against Thomas and issued a split verdict, clearing him of major terrorism charges and convicting him of trivia. In both trials, the verdict was surprising in light of the evidence, where Thomas confessed to the appearance of being a terrorist, but claimed that it was all a ruse.

While it may be that both juries diligently applied the requirement of proof beyond reasonable doubt, I suspect – and indeed hope – that the split verdicts were deliberate messages aimed at the Australian authorities, expressing outrage at their connivance in conduct that is much worse than anything Thomas is accused of.

There’s been some talk lately of abolishing juries. I’m torn by such calls. The complex task of fact-finding strikes me as ideally suited to professionals, who can be trained for their job and can be expected to provide testable reasons for their decisions. But professionals so often tend to toe official lines. These conflicting criteria for good fact-finders appear in the Charter’s fair hearing right:

24(1) A person charged with a criminal offence…  has the right to have the charge… decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Lord Devlin beautifully expressed how competence (via the long service of professional life) can be at odds with independence when it comes to the task of finding the facts that connect the law to individuals:

The power that puts the jury above the law can never be safely entrusted to a single person or to an institution, no matter how great or how good. For it is an absolute power and, given time, absolute power corrupts absolutely. But jurors are anonymous characters who meet upon a random and unexpected summons to a single task (or perhaps a few), whose accomplishment is their dissolution. Power lies beneath their feet but they tread on it so swiftly that they are not burnt.

The juries of Jihad Jack managed to accomplish a justice that completely eluded the various institutions involved: the AFP, the Cth DPP, the Supreme Court, the Court of Appeal and the High Court.

The Charter, alas, was inapplicable in Thomas’s trials, due in part to its federal aspects (the involvement of AFP and ASIO, and the federal offences) and also (in relation to state aspects, such as court procedure) because of  the Charter’s appalling transitional provision. If the Charter had been applicable, some weighty rights indeed would have been engaged:

• Charter s. 10 (torture): Not only was Thomas (on all accounts) tortured and degraded at the hands of Pakistani and CIA agents, but Cummins J appallingly admitted confessions he made to escape further torture.
• Charter ss. 14, 15 & 16 (civil freedoms):The ridiculous offence of receiving money from (as opposed to funding) a terrorist organisation, without any requirement to prove an intent to further the organisation’s aims or to commit a crime, would, if it was a Victorian offence, have almost certainly engages the Charter’s rights to belief, expression and association. While these rights can be subjected to ‘lawful restrictions’, that caveat requires that the restrictions be accessible and proportionate. Charging Thomas with an offence that was recently created while he was out-of-contact overseas scarcely meets the first requirement; the 25 year maximum penalty (and the oppressive five-year sentence Cummins imposed) make a mockery out of the second.
• Charter s. 25(2)(b) (right to a lawyer): The AFP told Thomas of his right to communicate with a lawyer, but simultaneously informed him that he couldn’t exercise it (due to Pakistani restrictions.) Their failure to stop the interview then and there is what made his first trial possible, after Cummins appallingly held that compliance with Thomas’s rights wasn’t required in the circumstance. If Thomas had access to a lawyer, he would have been made aware of the new offences (and, of course, advised to exercise his right to silence.)
• Charter s. 26 (double jeopardy): The Court of Appeal, after correcting the erroroneous admission of THomas’s tortured and unadvised confessions, which permitted his first trial, erroneously permitted a second trial, sidestepping a clear High Court authority (not to mention a major ruling of the US Supreme Court) to allow the prosecution to have a second go based on entirely new evidence. The outgoing Chief Justice and Hayne J weren’t bothered.

The new evidence was interviews given by Thomas that were published after his first wrongful conviction. A lot of commentators have glibly observed that Thomas was ‘badly advised’ about giving that interview. But I disagree.

Tribunals under the Charter

Thanks to Phil Lynch for sending me two old but previously unpublished Charter decisions by the Mental Health Review Board.

One, MHRB [2008] 08-133, is an early instance (from late February) of the unfortunate trend of decision-makers addressing a human rights issue solely in terms of Charter s. 7(2) and, inevitably, finding that the test is satisfied. The MHRB, noting its obligations under Charter s. 32 with regards to interpreting legislation, itself raised the concern that compelling a paranoid schizophrenic to undergo a fortnight injection (from a doctor she regarded, naturally, as persecuting her) was cruel, inhuman, degrading and non-consensual. But it concluded:

The Board’s view is that the severity and longevity of P’s illness (which it has found renders her incapable of giving (or refusing to give) informed consent to her treatment), together with the significant risks to her mental and physical health and significant social relationships, make it reasonable to limit P’s human rights in this instance.

I don’t doubt the MHRB’s sincerity here, but anyone who thinks that this is bland instance of self-assessment is a ‘human rights culture’ is kidding themselves. As I’ve argued repeatedly in this blog, Charter s. 7(2) is a tool for assessing laws, not conduct. The MHRB didn’t consider any of the terms of the Mental Health Act, so it wasn’t assessing laws. Instead, the relevant inquiry should have been whether the treating doctor or the MHRB was bound by the conduct mandate and, if so, whether it had a defence  under Charter s. 38(2).  In short, the relevant question for the MHRB is whether the obvious limitation of P’s rights was the only reasonable option under the governing law.

The other decision, MHRB [2008] 08-106, is dated 7 January 2008 (although the hearing that produced the reasons is dated 9 January 2008. Oops.) Either way, it beats Gray v DPP by a week or so as the first ever Charter judgment in the Charter’s fully active mode. And P, a man with a troubled combination of intellectual disability, mental health issues, substance abuse, anti-social behaviour and sexually transmitted diseases, beats Nick Corcoris as the first person to be denied the benefit of the Charter’s operative provisions. In this case, the Mental Health Legal Centre made a ‘Charter challenge’ against the use of injections on P, who is scared of them, again an obvious breach of his rghts against non-consensual medical treatment. The MHRB held:

[T]he Board has no power under the Charter to determine the compatibility of the Act, or any provisions of the Act, with the Charter, nor to declare particular decisions or actions to be in breach of specific Charter rights. Save for the s32 requirement in respect of the interpretation of laws, the Charter does not change the Board’s substantive decision-making role under the Act.

The Board’s point is basically that the Charter doesn’t contain any direct remedies for rights breaches and certainly doesn’t give the tribunal the power to give such a remedy. Indeed. But the Board’s analysis seems to downplay the differences the Charter can make:

• Interpretation: The Board acknowledges its new interpretative role, but then claims that it can’t determine the compatibility of the Mental Health Act with the Charter. It’swrong. Whenever the Board applies the MHA, it is obliged to think about its compatibility with the Charter and, if there is a problem, to re-interpret wherever possible. Charter s. 6(2)(b) gives all tribunals functions under Division 2 of Part 3, including interpretation. And Charter s. 3(2) defines functions to include powers and duties. So, Board, do your duty!

• Obligations of doctors: The Board makes this interesting claim:

[A]s a public authority, the Charter will require individual treating teams in area mental health services to take Charter rights into account when making… treatment decisions.

I don’t know enough about the legal and social basis of mental health services to know whether this claim is correct. Maybe mental health services are statutory bodies? If not, the argument has to be that they perform a public function on behalf of the State of Victoria. Not all doctors fit that description, but clearly some will. Anyway, if true, then doctors are not merely required to take rights ‘into account’ but to act compatibly with them, subject to the defences to Charter s. 38. The Board however says that that isn’t its problem:

Since its early days, the Board has taken the view that the specific type and mode of treatment provided to an involuntary patient is a matter of clinical judgment that should be determined by the treating team, in consultation with the patient, as part of the treatment planning process… In the Board’s view, the Charter has not altered that basic position, and the Board has no power to, nor should it, make treatment decisions in individual cases.

This might be good policy, but the Board hasn’t done the right analysis to conclude whether or not it is good law. If doctors are breaching their conduct mandate, then they are acting unlawfully. The question isn’t whether Boards should interfere with a clinical judgment, but whether they should test to see whether the treatment team is complying with the law. Arguably, legislation that doesn’t allow a tribunal to review whether or not behaviour is unlawful is itself incompatible with the Charter s. 7(2) test governing limitations on rights. So, the question then is whether the terms of the Mental Health Act can be reinterpreted to give the MHRB such a review role. (The MHA’s appeal and review criteria are pretty strict, so maybe not.)

None of this would be a problem if the MHRB were itself subject to the conduct mandate. But the MHRB held that it wasn’t:

Dodging a dodgy argument (dodgily)

In Allen v Secretary to the Department of Justice & Anor [2008] VSC 28, (the first Supreme Court Charter case in two months!), Hansen J was confronted by this typical example of a crazy buckshoot by an unrepresented, non-legally educated litigant:

Ground 2 complained that between 13 September 2007 and 1 November 2007 the Office of Corrections breached a duty of care and impugned Mr Allen’s right to privacy and not to incriminate himself by, without lawful excuse, procuring the release of the Dorevitch medical file, and denying him due process of law. It is then stated in ground 3 that the actions of the Office of Corrections and their “body” the Adult Parole Board offended the Westminster system, 800 years of the English Common Law and the Victorian system of due process under s 70 of the Drugs, Poisons and Controlled Substances Act 1981, the Sentencing Act 1991, the Corrections Act 1986 and the Victorian Charter of Human Rights and Responsibilities. In the further grounds it is complained that the Office of Corrections through their Adult Parole Board circumvented due process of law in that they made an allegation against Mr Allen (of drug use), cancelled his parole and imprisoned him without charge, trial or sentence under law. In these circumstances Mr Allen complains that his arrest and detention in prison is unlawful. Mr Allen further complains that despite having drawn his unlawful treatment to the attention of the Attorney-General, the Attorney-General had not done his duty to correct the abuse of due process of law, and had abused his duty of care to Mr Allen under the Charter of Human Rights and Responsibilities.

The plaintiff, the incongruously-named Peter Allen, is clearly not a happy customer of Victoria’s criminal justice system. Serving a sentence (or sentences) for an unnamed crime (or crimes) since 1985, Allen (after unsuccessfully challenging his imprisonment via habeus corpus), was paroled in March 2007. Alas:

Following his release on parole, Mr Allen reported directly to his supervising community corrections officer at Frankston. The Board monitored the parole and as part of this process wrote to Mr Allen on 3 April, 2 May, 8 August and 25 October 2007. As part of his parole supervision Mr Allen submitted to three urine tests conducted by Dorevitch Pathology, the results of the first two of which were reported to the Frankston office on 20 August and 16 October respectively. The August test recorded a positive reading for benzodiazepines, and the October test for amphetamine and methylamphetamine. Following these tests the Frankston office submitted a Breach Report to the Board which requested a further urine test which was collected from Mr Allen on 29 October 2007. That test, which was reported on 1 November 2007, recorded a positive reading for amphetamine. On 1 November 2007 the Board cancelled Mr Allen’s parole and pursuant to s 77(6) of the Act issued a warrant for his apprehension and return to prison. Mr Allen was duly arrested on 2 November 2007 and returned to prison where he remains serving his outstanding sentence.

Hence, his grumpiness about the divulgence of his test results. Of the three Charter rights he mentions, the rights to privacy and against self-incrimination can presumably be rejected on the grounds that the testing was both lawful and non-arbitary and (except, it seems, for police officers) the right against self-incrimination is usually regarded as not extending to drug testing. But it is not so easy to dismiss the remaining Charter right:

10 A person must not be-… (c) subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent.

You could, of course, run a Charter s. 7(2) response. But Hansen J instead relied on the Charter’s operative provisions:

The third point is that pursuant to s 4(1)(k) of the Charter of Human Rights and Responsibilities the Board has been declared not to be a public authority for the purposes of the Charter; see the Charter of Human Rights and Responsibilities (Public Authorities) (Interim) Regulations 2007. Furthermore, the Charter of Human Rights and Responsibilities does not impose on the Attorney-General a duty of care to Mr Allen. Nor in my view does the Attorney-General owe a duty to Mr Allen as contended in the grounds.

Hansen is certainly right about the Parole Board. I’m sure they’ll use this case as another justification for why they need a permanent exemption from the Charter.

But the Attorney-General, himself a public authority, hasn’t (to date) exempted himself from the Charter’s conduct mandate and I’m dubious about Hansen J’s argument in respect of him.

The right to consent

Another June VCAT decision newly uploaded to Austlii, MM (Guardianship) [2008] VCAT 1282 is yet another case on the interaction between the Charter and Victoria’s laws for controlling the mentally unwell.It is also part of a developing and worrying trend in non-analysis of Charter ss. 7(2) & 32.

MM, like Queensland’s Dennis Ferguson, has a history of sexual offences against young boys. Unlike Ferguson, controlling MM does not require further fraught recourse to the criminal justice system. Instead, because MM has a mild intellectual disability, he falls within the regime of Victoria’s new Disability Act 2006, in particular a division

…for the making of a civil order, a supervised treatment order, to enable the detention of a person with an intellectual disability who poses a significant risk of serious harm to others.

The Disability Act (for people with disabilities, including ‘intellectual disabilities’), like the Mental Health Act 1986 (for people with a ‘mental illness’), is subject to a modern set of interpretative principles, including a least intrusion principle; however, whereas the mentally ill can only be treated in their ‘best health interests’ and ‘never as a punishment or for the convenience of others’, that principle is missing from the equivalent principles for treating people with an intellectual disability. Indeed, people with a disability are deemed to have the same ‘rights and responsibilities‘ as others. Now, where have I heard that notion before?

The interesting question raised by MM is whether a compulsory treatment order can be imposed on a person who actually wants the treatment in question (or most of it.) MM has been on an interim treatment order in a ‘generally locked’ facility since the day the Disability Act commenced and has been gradually working his way up from the most restrictive ’stage 1′ to a less restrictive ’stage 3′. He wants to continue his treatment at the least restrictive ’stage 4′ but does not the order. (One difference is that the order would carry the prospect of being downgraded to more restrictive stages in some circumstances.)

Interestingly, no-one seems to doubt the genuineness of MM’s desire to be treated. However, a psychologist assessed his consent as follows:

Ms. Leigh-Smith expressed the opinion that MM was “unable but willing” to consent to voluntarily complying with a treatment plan to substantially reduce the significant risk of serious harm to another person. He appeared to be able to understand “at an intellectual level” the nature, purpose, benefits and risks of treatment, possible alternatives and the consequences of not receiving treatment. He appeared able to retain information in order to consider it and arrive at a decision. However, given MM’s “limited emotional insight”, Ms. Leigh-Smith questioned when considering the restrictive aspects of the treatment plan whether MM was able to integrate and analyse the emotional costs and consequences of participating in treatment. It was on this basis that Ms. Leigh-Smith was of the opinion that MM appeared unable to make “a fully informed decision” about his treatment plan.

In a sense, what MM is after is the converse of this Charter right:

10 A person must not be- … (c) subjected to medical… treatment without his or her full, free and informed consent.

MM wants to consent, to medical treatment but will he be allowed to?  

The right to review

The central question in the recent Charter-focused Mental Health Review Board ruling was what happens when this provision is breached:

30(4) The Board must conduct a review of the extension of a community treatment order within 8 weeks after the order is extended.

The respondent had been on a CTO since 2005, but the extension of his CTO in early 2007 was not only not reviewed within 8 weeks, but not reviewed at all prior to a further extension early this year. So, was his CTO still valid?

Ordinary law is good at posing questions like this but not at answering them. As the Brennan High Court observed in Project Blue Sky v ABA [1998] HCA 28:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

Various High Court cases refer to such hard to pin down tests as parliament’s intent, the consequences of the various options and (in the unfortunate Gleeson era) circular tests about jurisdiction. The Mental Health Act has its own interpretative provision, but it also pushes in competing directions on this issue:

4(2) It is the intention of Parliament that the provisions of this Act are to be interpreted and that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that-

(a) people with a mental disorder are given the best possible care and treatment appropriate to their needs in the least possible restrictive environment and least possible intrusive manner consistent with the effective giving of that care and treatment; and

(b) in providing for the care and treatment of people with a mental disorder and the protection of members of the public any restriction upon the liberty of patients and other people with a mental disorder and any interference with their rights, privacy, dignity and self-respect are kept to the minimum necessary in the circumstances.

Unsurprisingly, the MHRB favoured the interpretation that s30(4) had no effect on the validity of CTOs, a reading it said would preserve the best possible care of the mentally ill (continued compulsory treatment, naturally) while allowing the Board ‘an appropriate degree of flexibility’. (It did, however, hold that s30(4) required substantial compliance, although apparently this could be met by  not doing a review at all for twelve months!)

This sort of interpretative neverland is the raison d’être of the Charter’s interpretation mandate:

32(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

But there’s a problem: the Charter only contains a review right for criminal convictions and sentences (Charter s. 25(4)) or to a review of the lawfulness of detention  (Charter s. 21(7)). Even if CTOs were considered to involve detention (because of either the requirement to attend a medical facility for treatment or the potential for an order on where to live), Charter s. 21(7) wouldn’t assist in interpreting s. 30(4) because it is only satisfied by review by a court (rather than a tribunal like the MHRB.) So, what rights are engaged by a provision requiring a review?

A judgment at last!

Many thanks to Phil Lynch at HRLRC for forwarding me a judgment of the Mental Health Review Board, brought down on Tuesday. And here’s the excitement: of its 43 pages and 247 paragraphs, about half of them  – particularly 12 pages and 53 paragraphs of actual analysis by the Board – aredevoted to the Charter. That is easily more Charter analysis than has appeared in all the reported Charter judgments in Victoria combined. In fact, I’m pretty sure that it’s more than anything that has appeared in all the ACT judgments on the HRA combined as well. It is, in short, what I’ve long been waiting for: a detailed, step-by-step, analysis of some key operational and rights provisions of the Charter in an actual contested tral, where it’s obvious that both parties have made full arguments on these points and the decision-maker has taken those arguments seriously.

The downsides: It’s not a formal precedent in any way, as the MHRB is not a court. Indeed, the MHRB doesn’t even have to be comprised of lawyers, though any questions of law must be resolved by the Board’s legal member, in this case a Mr John Lesser. On the other hand, lawyers represented each side and the Attorney-General intervened and was made a party. The judgment doesn’t carry an official name and is not available on Austlii (whose database on MHRB judgments seems to have died sometime in 2006.) Nor is it available on the MHRB website. But perhaps it’ll be posted on the HRLRC website or somewhere soon enough. Anyway, I have it, thanks to Phil Lynch. [EDIT: Alas, the judgment isn't publishable as it needs anonymising. I'll refer to the man involved as 'the respondent', until I can come up with something better. For a detailed description and critique of the judgment, see Lynch's analysis. FURTHER UPDATE: The anonymised judgment has now been published here.]

Here’s the short summary (and it’s a weird and new experience indeed to have more than two lines to ’summarise’; it took me over an hour to read the thing once, and I will need to read it several times more!):

Back in 2005, the respondent was placed on a community treatment order (CTO) by his psychiatrist. CTOs are the mildest form of coercive power used against people with mental illnesses and are available when people have been made the subject of an involuntary treatment order (which can authorise someone’s detention for the purpose of being treatment) but a psychiatrist decides that detention isn’t necessary:

14(2) A community treatment order is an order requiring the person to obtain treatment for their mental illness while not detained in an approved mental health service.

(3) A community treatment order- (a) must specify the duration of the order, which must not exceed 12 months; and (b) may specify where the person must live, if this is necessary for the treatment of the person’s mental illness.

Clearly,  ‘Mildest’ doesn’t mean ‘mild’.  The respondent in particular is very unhappy about his and wants out of it, so he can stop taking his medication and move on to milder treatment like valium.

CTOs expire twelve months after they are made but they can be extended. GK’s CTO has been extended three times: in April 2006 (by the MHRB), in February 2007 (by the respondent’s psychiatrist) and January 2008 (again by his psychiatrist.) The problem is at the February extension was never reviewed by the MHRB as required by this provision of the Mental Health Act 1986:

30(4) The Board must conduct a review of the extension of a community treatment order within 8 weeks after the order is extended.

As is often the way, s30(4) doesn’t specify any consequences for breach. The respondent argues that the breach meant that his CTO expired sometime in 2007 and that the purported extension in 2008 and the planned review of it by the MHRB that was about to happen couldn’t happen, with the result that GK is free to stop taking his medication until his psychiatrist restarts the whole process. But the alternative argument is that nothing happened to the CTO and GK remains subject to a CTO. So, the principal (but not sole) question for the MHRB is a question of statutory interpretation: what are the consequences of a breach of s30(4) of the Mental Health Act 1986? This question is a tricky one in statutory interpretation and their are competing High Court cases on the issue. Applying non-Charter law, the MHRB, perhaps unsurprisingly, rejected the respondent’s interpretation. But what difference does the Charter make?

The fruits of torture

Previously on Charterblog:

Freidrich von Metzler, banker: “My son has disappeared and someone wants… one million Euros!”

Magnus Gäfgen, law student: “Jakob’s still alive, but I won’t say where!”

Wolfgang Daschner, Vice President of the Frankfurt Police: “Tell me where or my colleague will inflict great pain (but no injuries!)”

Magnus Gäfgen: “I killed Jakob. I’ll show you where to find his body and some other evidence implicating me!”

Frankfurt Regional Court: “Daschner, I sentence you to a suspended fine. Gäfgen, I sentence you to life imprisonment! “

Magnus Gäfgen: “What about my human rights? Also, I want money!”

The following takes place between Article 3 (right against torture) and Article 6(1) (right to a fair hearing) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (but the rights are the same in the Charter.) Events take place in surreal time.

In last night’s decision, Gäfgen v Germany [2008] ECHR 565, a seven judge chamber of the European Court of Human Rights, despite rejecting Gäfgen’s claims that he was threatened with rape and pain even after the police realised that Jakob was dead, held that the young law student, killer and incompetent blackmailer was treated inhumanely, albeit with ‘mitigating factors’:

The Court would like to underline in this connection that in view of the absolute prohibition of treatment contrary to Article 3 irrespective of the conduct of the person concerned and even in the event of a public emergency threatening the life of the nation – or, a fortiori, of an individual – the prohibition on ill-treatment of a person in order to extract information from him applies irrespective of the reasons for which the authorities wish to extract a statement, be it to save a person’s life or to further criminal investigations. Moreover, the applicant’s treatment must be considered to have caused him considerable mental suffering, which is also illustrated by the fact that, having persistently refused to make correct statements until then, he confessed under the influence of such treatment where he had hidden J. Thus, the Court finds that the treatment the applicant was threatened with would, if carried out, amount to torture.

However, the questioning lasted for some ten minutes only and, as was established in the criminal proceedings against the police officers (see paragraph 46 above), took place in an atmosphere of heightened tension and emotions owing to the fact that the police officers, who were completely exhausted and under extreme pressure, believed that they had only a few hours to save J.’s life, elements which can be regarded as mitigating factors… Furthermore, the threats of ill-treatment were not put into practice and have not been shown to have had any serious long-term consequences for the applicant’s health. 70. In the light of the above, the Court considers that in the course of the questioning by E. on 1 October 2002 the applicant was subjected to inhuman treatment prohibited by Article 3 of the Convention.

But six judges of the court held that the German courts had already provided Gäfgen with sufficient remedies for his treatment, as they had recognised that the law student was treated illegally and that his rights were breached, exposed his tormentors to career penalties and thrown out the confessions Gäfgen made in the days and weeks after the treatment:

It is true that the applicant has not to date obtained payment of any compensation in the official liability proceedings he instituted against the Land of Hesse; these proceedings are currently still pending. Having regard to all the circumstances of the case, the Court finds, however, that in a case such as the present one, in which the breach of Article 3 lies in a threat of ill-treatment (as opposed to actual physical ill-treatment attaining the threshold for Article 3 to apply), redress for this breach is essentially granted by the effective prosecution and conviction of the persons responsible. The Court finds that, not least in view of the wide public approval of the treatment to which the applicant was subjected, the criminal conviction of the police officers responsible, which acknowledged in an unequivocal manner that the applicant had been the victim of prohibited ill-treatment, was essential in affording him redress in a manner other than by the payment of a sum of money.

So, Gägner might have got some money if he had been courageous in the face of the threat of torture to the point where the German police actually had to torture him. Or if the German people hadn’t been so solid in their support for the threats. Or if his almost-torturers hadn’t been given a slap on the wrist…

And what about the small matter that Gäfgen is serving a life sentence based on a trial that was full of evidence that he had directed the police to immediately after he was threatened with torture?

The Charter vs Jack Bauer

The TV series 24 – whose shtick is its real time format, where every second on your TV equates to a second of plot development – was originally pitched with a plot about a couple on their wedding day. But it was quickly switched to a terrorism drama, which it has maintained for six seasons now. Terrorism is a natural for the real time format, because of the recurrence of ticking bombs, inevitably with red LED countdowns, or their equivalents: ticking viruses, ticking nerve gas, ticking nukes, ticking deaths of all varieties.

And all that ticking has given the show its signature moral dilemma: what do you do when the one person who knows where the bomb (or equivalent) is won’t tell you? For Jack Bauer, the series protagonist, there’s no dilemma at all. He just tortures them with whatever’s handy: drugs, an electric cord, even a towel. The series writers know where they stand, because Bauer’s approach usually (though not always) saves more lives than its costs.

But, in real life, there’s a legal issue. In 1999, the Supreme Court of Israel was asked to rule on the legality of torture in a hypothetical ticking bomb situation, in a case on whether the state security service could apply low level torture methods (akin to those approved by Bush) on suspected terrorists:

In the course of their argument, the state presented the “ticking bomb” argument. A given suspect is arrested by the GSS. He holds information regarding the location of a bomb that was set and will imminently explode. There is no way to diffuse the bomb without this information. If the information is obtained, the bomb may be neutralized. If the bomb is not neutralized, scores will be killed and injured. Is a GSS investigator authorized to employ physical means in order to obtain this information?

The Supreme Court ruled that the criminal law defence of necessity could not provide any advance authority for torture, because the nature of the defence was an improvised response to an emergency. However, the Court did not resolve two further questions:

We are not dealing with the criminal liability of a GSS investigator who employed physical interrogation methods under circumstances of “necessity.” Nor are we addressing the issue of the admissibility or probative value of evidence obtained as a result of a GSS investigator’s application of physical means against a suspect.

In the last couple of years, Germany’s courts have had to deal with both of these questions in an extraordinary non-terrorism case. And, this Monday, the European Court of Human Rights will have to resolve the second one.

In 2002, 11-year-old Jakob von Metzler disappeared shortly after getting off his school bus. An hour later, a ransom letter was sent to the boy’s family – his father was a senior bank executive – demanding 1 million Euro. The money was dropped off at a tram station and the police observed a law student, Magnus Gäfgen, the brother of a friend of Jakob’s, picking it up. Gäfgen, who later said that he wanted to impress his wealthy girlfriend and lead a life of luxury that matched his planned status as a lawyer, banked part of the money. He was arrested at Frankfurt airport trying to leave the country. At his interrogation in Frankfurt’s central police station, the law student accused others of perpetrating the kidnapping and claimed that the boy was alive, citing several hiding places none of which yielded Jakob. Cue the ticking clock.

Concerned that the boy was starving or exposed to the elements somewhere, the Vice President of the Frankfurt police, Wolfgang Daschner, signed an official note ordering a subordinate to inflict pain on Gäfgen (without causing ‘injuries’) under medical supervision. Within ten minutes of being confronted with this threat (which Gäfgen claimed included the prospect of being raped by fellow detainees) and without any inflicting of actual pain, Gäfgen confessed that he had killed Jakob and directed the police to the lake where the body had been dumped and other evidence tied Gäfgen to the kidnapping. Gäfgen later confessed to the murder and kidnapping to the police and  before a court. These events created an extreme dilemma for the German courts. What were they to do now with Gäfgen and Daschner?

Bob Carr vs prison health

In a parliament known for its high percentage of lawyers (in contrast to Victoria’s), I forgot that Bob Carr is a rare exception: a journalist. So, I perhaps he can forgiven for not doing the very basic legal research required to test his rights statute anecdotes, which, it seems, he (or his UK mate) probably just gathered by googling. Here are his two UKHRA claims concerning prisoners:

In Scotland, because of a delay in placing toilets in prison cells, the Scottish Law Reporter estimates that prisoners may be entitled to awards totalling pound stg. 76 million ($158.7 million) because their cells violated the European Charter of Fundamental Rights. The Government had been caught up with another priority, expanding drug rehabilitation programs for inmates. Last year, pound stg. 750,000 was paid to 197 heroin-addicted prisoners who successfully argued that cutting short their treatment while in prison breached their human rights.

Now, he has the law right in both cases but he left out some interesting facts  and made one serious misrepresentation.

One interesting fact is that the ‘Scottish Law Reporter‘ isn’t, despite its name, a professional legal journal but rather a blog (and who would trust what’s written in a blog?) In fact, this blog mostly just sets out others’ comments and the entry apparently relied on by Carr (for the claim about the conflicting government priorities) was actually an Oped written by Lord McCluskey. He happens to be a long-time critic of the HRA (and the Canadian Charter) whose strident criticism of the HRA back in 2000 (including aspersions cast on particular European nations and the claims of ‘convicted prisoners [and] men engaged in homosexual conduct in private’), delivered in a Scottish newspaper right after he rejected an appeal of Dutch nations raising their ECHR rights, saw that decision overturned and him effectively barred from all future HRA cases. No wonder he author of the blog (“Legal Beagle’) described the OpEd as ‘pontification.’ Carr’s journalism skills seem to be a little rusty!

Another curiosity is that, in contrast to his willingness to mention the relevant rights in his BC doctors anecdote, Carr (unlike McCluskey) somehow failed to mention that the main right in issue in both of the cases described by Carr was the right against ‘degrading treatment’, which, in Europe and Australia is protected in the following terms:

10 A person must not be- (a) subjected to torture; or (b) treated or punished in a cruel, inhuman or degrading way…

Fancy giving the courts a say (when it comes to statutory interpretation and executive discretion) on issues like this? (The toileting case also relied on the right to privacy, but only as an alternative if the degrading treatment argument was incorrect.)

Also, neither of the payouts he mentions was ordered by a court, but was rather the product of a a legal settlement between the various crowns involved and the prisoners, in each case with the crown insisting that it careful chose between meritorious and unmeritorious claims. But there were earlier court decisions in each case. The Scottish case involved a remandee who had suffered from extreme eczema from the age of 2 months who, despite suffering an infected outbreak, was placed in a cell block that used the toileting practice of ’slopping out’ – basically, you and your cellmate shit in a bucket that you  and other prisoners poured into a communal trough up to four times a day, a practice long abolished elsewhere in the UK and slated for abolition years earlier in Scotland before funding was diverted – and not moved despite having one of the worst outbreaks a prison doctor had ever seen. The heroin case was a ECtHR ruling involving a heroin-addict who died three weeks after being imprisoned, having spent most of the time of vomiting. The ruling was based on poor medical response to her dehydration, but the English authorities were probably a little chilled by the Court’s endorsement of her treatment with heroin withdrawal medication, as they had recently switched to a ‘cold turkey’ approach to heroin addicts. In short, both cases – and the resulting settlements – concerned the duty of the state with respect to prisoners’ health, hardly a matter that is typically regarded as the proper realm of parliamentary politics.

And what of Carr’s delicious claim that the Scottish toileting problem was the result of diversion of funding to drug rehabilitation, which presumably would have been handy to those heroin-addict prisoners (or at least any Scottish ones?)

The Charter and mental health

MH6 v Mental Health Review Board (General) [2008] VCAT 846 is a sad case about a man who was thrown off his horse back in 1982 and suffered a brain injury. Detioration and imprisonment for indecent assault ensued and he ended up committed to Mary Guthrie House. Despite the warm and fuzzy name, this is a high secure detention facility for adults with brain disorders. While the average stay is 6-12 months, MH6 has been there since 2002. He now wants out.

Standing in his way is the Mental Health Act 1986, which provides for continued involuntary treatment:

36 (1) This section applies on an appeal or review for a patient who is detained in an approved mental health service under an involuntary treatment order.

(2) If the Board considers that the criteria in section 8(1) do not apply to the patient, the Board must order that the patient be discharged from the involuntary treatment order.

(3) If the Board is satisfied that the criteria in section 8(1) apply to the patient, the Board must confirm the involuntary treatment order.

MH6 disputed the application of one of the s8(1) criteria:

(e) the person cannot receive adequate treatment for the mental illness in a manner less restrictive of his or her freedom of decision and action.

His counsel tried to rely on the Charter:

Mr Hancock in his written submission contended that in making any determination under s 8(1)(e), I must consider this provision of the Mental Health Act in light of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (The Charter). Without drawing to my attention in what way, and where relevant, which particular parts of the protected rights claimed were engaged, Counsel simply submitted that the following sections of the Charter were relevant :

10 Protection from torture and cruel, inhuman or degrading treatment

12 Freedom of movement

21 Right to liberty and security of person

22 Humane treatment when deprived of liberty.

His submissions in support of his contentions as to the application of those sections of the Charter were one and the same as those set out at the commencement of my consideration of the application of s 8(1)(e). Mr Hancock did not elaborate further on how the sections of the Charter applied.

Those do seem to be the relevant rights, especially given that Charter s. 10(c) contains a right against non-consensual medical treatment.

Pepper and porn

Two recent Victorian police actions seem to cry out for Charter analysis. One is the use of capscicum spray at the Australian Open, which arguably is an unjustified breach of the rights of (at least) the uninvolved spectators to not be treated in a degrading way and to security. The question of remedies (especially damages) is much less clear.

The other action that sparked my Charter interest is the arrest of everyone’s favourite teenage party animal on, of all things, producing child pornography. This is only interesting if the ‘child pornography’ is – as some suspect – mobile phone footage of consensual conduct with a person who is just under 16 (or appears to be) with the knowledge of all involved, i.e. a technical and trivial instance of child porn. If that’s the case, then the arrest reeks of ulterior motives, e.g. vengeance or stopping the lad from doing the media rounds, motives that arguably make his arrest arbitrary. There’s also an argument that criminalising harmless aspects of teenage sexuality (if that’s what this was) is a breach of freedom of expression, though that’s not a claim that is likely to go down well with the Victorian public!