Victory Against Forced Injection Regime in NSW, as Order Against Patient is Quashed

NSW Health admitted last week that it has been wrong in subjecting 74-year-old Kerry O’Malley to monthly forced injections, under the coercion of a community treatment order (CTO) issued by the NSW Mental Health Review Tribunal on 1 April this year.

After fighting the imposition of forced medications for the last 47 years, O’Malley was pleased to learn that the department had backed down on its insistence that she must be injected with medication that’s having a detrimental impact on her health, rather than any therapeutic benefits.

This is not the first time O’Malley had been subjected to a CTO, and nor was it the first time she’s challenged an imposed court order. Last December, she appealed the imposition of a six month-long CTO. And on refusing to revoke it, the Tribunal conceded to reduce the order to three months.

However, as soon as the CTO period was over, O’Malley was back at the Tribunal on 1 April, this time disputing the reimposition of the same order. And despite presenting an alternative health plan, the elderly woman was denied her request and the order was extended for a further six months.

So, with the support of Justice Action, barrister Stephen Lawrence and some solicitors working pro bono, O’Malley filed a case with the equity division of the NSW Supreme Court. And following the stand down last week, Justice Geoff Lindsay ordered the CTO quashed and NSW Health to pay costs.

Health backs down

“This is a massive personal victory for Kerry O’Malley,” Justice Action coordinator Brett Collins told Sydney Criminal Lawyers. “The injection caused severe mental and physical side effects such as increased anxiety, a lack of motivation, poor concentration, weight gain and loss of hair.”

“The health department’s lawyers told the Supreme Court that the community treatment order that permitted the injection was invalid, and should be quashed since it was incorrectly authorised,” he continued. “However, the lawyers said they intended to make an application for a new order.”

Justice Action is a civil society organisation that advocates for the rights of those caught up in the criminal justice and mental health systems. It’s been supporting O’Malley in her effort to prevent medications being forced upon her since 2015.

Collins had sought to represent O’Malley in her hearing last April. But, despite initially agreeing, the Tribunal denied her any representation, as it invoked the provisions of the Mental Health Act 2007 (NSW) to conclude that she didn’t warrant representation as she wasn’t detained in a hospital.

“Access to Ms O’Malley’s medical file was previously blocked by NSW Health,” said Collins, adding that her lawyers had filed a subpoena to have the documents produced in court, but as the department backed down, this process was avoided.

The CTO regime

Section 51 of the Mental Health Act provides that the Tribunal can impose a community treatment order authorising the compulsory treatment of a person within the community. A CTO application can be made by an authorised officer of a mental health facility where the subject is a patient.

Section 56 outlines that a CTO should detail the facility providing treatment, how it’s to be applied and an order can be issued for up to 12 months. While section 59 stipulates that if an order is breached, a police officer can apprehend the subject and take them to the hospital for treatment.

The Mental Health Review Tribunal 2018/19 Annual report states that over that 12 month period, 5,599 CTO determinations were made, with 491 of them being issued for over 6 months, usually for a 12 month period.

A Justice Action CTO report outlines that the orders are ostensibly to deal with mental health patients that refuse treatment, however they’re often applied as an alternative to social support and counselling, as they’re “much simpler and cheaper”.

“CTOs are coercive and anti-therapeutic as they remove all elements of personal autonomy and responsibility for affected individuals,” Justice Action makes clear. “The potential for discrimination and counterproductive outcomes for affected individuals have also prompted calls for reform.”

The report concludes that while CTOs are seen as an alternative to incarceration, they greatly “impede a person’s life”. And while there is no conclusive evidence as to their effectiveness, they’ve certainly been shown to encourage further stigmatisation of those with a mental illness.

“Too much interference”

Kerry O’Malley is a mother-of-five and a former teacher. Although she poses no harm to herself or the community, she’s been subjected to forced medications, which have left her with severe physical and mental health side effects.

O’Malley has presented a personal management plan that’s been developed for her, which combines certain medications as well as social intervention strategies as an alternative to the forced medications, however the Tribunal has overlooked this in the past.

The 74-year-old has also been diagnosed with neuroleptic malignant syndrome. This makes certain medications incompatible with her genome, which can then cause distressing side effects. Although evidence of this has been dismissed as well.

Ms O’Malley said in a video last week that she was looking forward to not having the injection as it causes her to be “depressed and unmotivated”. And she added that the CTO was imposed because the department considers her to have a mental illness to which she’s been misdiagnosed.

Naming issues

The Tribunal ordered Justice Action to not use O’Malley’s name back in May citing the provisions of section 162 of the Mental Health Act. However, Mr Collins sets out that the elderly woman has been approved to use her name by the Tribunal in the past.

And the official NSW Supreme Court order signed by Justice Lindsay on 17 July uses Ms O’Malley’s full name.

Following her victory on 13 July, O’Malley said she’d be going down to Maroubra Beach to get a coffee. And she added that she’d prefer that the health authorities just leave her alone, as she has a good psychiatrist that she’s able to go to.

“I’ve got friends that support me, who don’t think I’m mentally ill,” she concluded. “They know I’m not mentally ill.”