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:

21(1) Every person has the right to liberty and security.

What else could the right to security be but a right against physical harm, including the muscular damage mooted by Lucire? (The heading of Charter s. 21, for what it’s worth, refers to ‘security of the person’.) Sadly, Rob Hulls’s view of this right, as put by his lawyers, the VGSO, is that Charter s. 21(1) is only triggered by detention, at least in mental health cases. When Joanna Davidson stated this at the Protecting Human Rights Conference – and I responded that that meant that it didn’t give a right against forced injections – there was a gasp from many members of the audience. President Maxwell was similarly stunned when Pamela Tate put a similar view to him at this week’s SSOMA matter. 

The summary of the Charter in the Mental Health Regs focuses on the familiar question of minimal intervention, mentioned in Charter s. 7(2)(e). But the approach of looking, one at a time, at the Charter s. 7(2) factors – as Tate is wont to do – ignores the overall requirement of reasonableness. Surely, when it is alleged that a public authority is doing something that will physically harm someone – and there is credible evidence before a court of such a risk – then the relevant question isn’t only whether the danger is sufficiently serious and imminent to warrant urgent intervention, but also whether or not there’s sufficient reason to continue with the treatment in the meantime. In my view, this question should be resolved by reference to the Charter’s statutory defence to the conduct mandate:

38(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

Byrne, in fairness, did allude to this issue:

The patient is, as I have mentioned, an involuntary patient and as such there is an obligation under section 12AD of the Act for him to be given treatment and, further, that such treatment may be administered, despite his lack of consent, in the appropriate circumstances set out in section 12AD(2).

Section 12AD is in these terms:

12AD(1) An involuntary patient is to be given treatment for his or her mental illness.

(2) If an involuntary patient refuses to consent to necessary treatment or is unable to consent to treatment for his or her mental illness, consent in writing may be given by the authorised psychiatrist.

It’s clear that s12AD(2) gives cover to breaches of the right against non-consensual medical treatment. But I’m far from convinced that 12AD(1) amounts to an inflexible mandatory requirement that would make it unreasonable for a doctor to temporarily withhold treatment that could cause (possibly permanent) physical harm to a patient, just because it’s need to treat his mental illness. The word ‘is’ isn’t quite emphatic enough for that purpose. And, to the extent that s12AD(1) could be interpreted in this way, surely the interpretation mandate, in combination with Charter s. 21(1), would require a more flexible interpretation?

Anyway, as Byrne noted, there’s a further statutory provision that supplies sufficient flexibility to allow the conduct mandate to bite:

That does not determine the matter because as has been drawn to my attention, section 19A obliges the authorised psychiatrist to prepare and review on a regular basis and revise, if required, a treatment plan for each patient.

Given this, it seems to me that there’s an onus on the hospital – who appeared but not as a party – to establish that Bryne’s mental health would suffer if treatment was temporarily stopped pending the MHRB hearing and that that harm outweighs the risk to his physical health. It may well be that the hospital put evidence to that effect, but it doesn’t clearly emerge in Byrne’s discussion.

One final thing to note: it seems unlikely that Daniels issued Charter s. 35 notices, as he is obliged to do in a Supreme Court matter. Fortunately, the Mental Health Regulations fail to mention this requirement, which would clearly things quite difficult for people like Bernard Daniels. And, also fortunately, Byrne, didn’t reject the Charter arguments on that basis. But isn’t it a pity that these bits of good fortune are needed if a lay person is to have any hope of relying on the Charter in an urgent matter?

2 thoughts on “The right not to be hurt

  1. Every “competent” adult has a right to forgo treatment, or even cure, if it entails for that person intolerable consequences or risks however unwise this sense of values may appear to the medical profession. It follows from this that the issue is one of personal choice. Therefore, it is the judiciary and NOT the medical profession who should rule on “forced treatment”, this because the courts must decide what is in the persons “best interest” and in so doing must make such decision as that person would make if competent. It is the Courts who must decide on The Right to Life…NOT the medical profession…as it is a question of law and NOT medicine…or is it?

  2. Hello Jeremy,

    I was most interested that you reviewed this case, I was present in the court for this case providing assistance and support to Mr Daniels Snr. His son’s medical records clearly document that his son has NMS and according to the manufacturers warnings and guidelines of the proposed treatment Zuclopenthixol injections it is contraindicated for a person with this condition. Clearly the father and his son were legitimately concerned.

    Unfortunately the expert witness did not support the claim of the father which was quite a shock to both the father and myself the day she provided her evidence, because the Doctor had confirmed with me the day before when I engaged her as a witness that this patient was in fact at risk from heart failure and further adverse reactions related to his condition NMS.

    We have now established that this particular Doctor has been before the NSW Medical Board and has condition that prohibit her from practice and was forced into psychological counsel. Clearly an unfortunate choice for the father and his son but as most people do they rely on that title Dr, sometimes considering it to be a sign of God himself without asking for references.

    Fortunately they have now engaged adequately competent and qualified experts but of course this did not support the application last year. Justice Byrne was particularly empathetic as a father and human being and made a comment of particular importance “We can’t have men in whites coats running about unsupervised”.

    The application was afterall only for 4 days until it could be reviewed by the MHRB but the stern and direct tone from Justice Byrne to the Thomas Embling representative was unquestionable and subsequently this service have taken a surprisingly conservative approach to dosage and at the lower dosage the patient has fortunately suffered minimal side affects. Of course who are they to force anybody to suffer any side affects considering this man originally presented with a headache from cannabis. It is true that this young man was foolish to experiment with cannabis but to automatically diagnose him with schizophrenia is most certainly a violation of his human rights, or is it. there is no evidence or test that confirms he had schizophrenia only a drug reaction to cannabis.

    It has been scientifically proven that cannabis requires the same genes/enzymes as the majority of psychotropic drugs a related to the CYP450 family. If a human being has a reaction either physical or psychological after ingesting or inhaling illegal drugs this is accounted for in the psychiatrists handbook the DSM yet it is rarely used if ever and instead they label the sufferer with schizophrenia and give them more of the same substance that has caused the toxicity in the blood stream in the first place.

    They never obtain “informed consent” they never admit that don’t actually know how or if these drugs can work or that is documented by clinical trial data that they can provoke drug induced psyhosis and akathesia defined as severe aggression and agitation, which has even led to homicide.

    After 5 months of stability without incident this innocent young man is still detained but if that is not bad enough they have negotiated with the very service alleged to have caused the initial injury to transfer this man yet again to another facility. This time a unit designed for long term institutionalism for patients these doctors deem unsuitable to ever return to the community, a facility that is overflowing with some of the worst sexual offenders.

    This young man is quite innocent as he has lost his entire 20’s to this industry and althouth artistically gifted a wonderful photographer currently working on his new website they deem him an undesirable to the community. Anybody meeting him will confirm he is a kind, gentle and an intelligent man and yet the father is unable to retain legal counsel, what is going on. Private lawyers shy away and the public system advise they have no capacity. It is clear as this patients community advocate that this patient is a victim of our government and its agenda to prevent human beings like this patient from even independant legal representation.

    Recently the father obtained an ex parte injunction again unrepresented and managed to get this extended the following week with representation and again within a few days the counsel have advised of unforseen circumstances that make it impossible for them to continue representing their son???

    What is the point of having the Charter if Victorians have nobody to represent them, the charter is of no use if it is simply hanging on the wall it must be enforced.

    This particular patients story is something you would read about from the early part the century or from within a developing country under dictatorship but not Victoria Australia. The defendant alleged to have caused him severe injuries are now involved in enforcing this transfer without any regard to the obvious conflict of interest. They claim and have done for 10 years the patient is treatment resistant coincidentally the prerequisite for psychosurgery (labotomy) the current facility thomas embling have confirmed that even though the patient is doing well on the current medication regime this may be changed on his transfer back to the defendant and after suffering abuse for years at the hands of this so called health care provider including the barbaric electric shock treatment that this amazing young man has survived he now faces the possibility of a labotomy. The secure unit they intend sending him provides specialist brain disorder programs and if somebody does not step in soon this man’s life is over.

    I am outraged as a citizen of this state that this has been allowed to happen, the MHRB continually ignore the recommendations by the Supreme Court Justices, when Byrne confirmed that they had the authority to review treatment plans they dismissed it and advised they would not get involved. When Justice Judd suggested it was inappropriate the patient was transferred to the defendant considering the claims and the ongoing litigation again the MHRB ignored this and transferred him back into their care which resulted in major adverse reactions to the dangerous levels of drugs they injected him with. So he spent weeks in seclusion probited from having visitors, no toilet facilities, so he was forced to defacte in a cardboard box and then eat in the same room, the shutters are pulled so he had no natural light (psychiatrist call this treatment) and with a mattress on the ground with no contact, no reading material just enforced injections this young man has been abused and violated beyond any comphrension of those on the outside. Remembering this is not a criminal he did not attack anybody, steal or comitt any crime.

    We all need to step up and assist this man including yourself, we have an obligation as human beings to not standby while such torture and barbaric acts are forced upon our fellow citizens.

    It is time to stop talking about the Charter but ensure that it is enforced.

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