I. Introduction
“Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.”
— Article 17, Convention on the Rights of Persons with Disabilities
All individuals are entitled to bodily integrity—the inviolable right to exercise personal autonomy and self-determination over one’s own body. This right also encompasses the ability to consent to or refuse medical treatment. Although unconsented intrusions are generally considered unethical and potentially criminal, there are a number of legal situations during which unconsented medical treatment can be legally imposed, such as in an emergency situation or when a patient is deemed incapable of consenting.
This article focuses on the use of involuntary medical treatment on prisoners with mental illness, an extremely vulnerable social group that comprises almost half the prison population. Saeed Dezfouli and Malcolm Baker are two such prisoners who have been repeatedly medicated against their will during their time in incarceration. Both individuals have fought long legal battles to assert their right to consent to their medical treatment. An exploration of their cases reveals some of the systemic failures of the justice system in protecting the rights and dignity of the mentally ill individuals under their care.
II. Saeed Dezfouli
Saeed Dezfouli is a forensic patient at Long Bay Prison who has been in detention since 19 January 2002. Dezfouli first came to Australia as an Iranian-born refugee and became a citizen in 1986, finding work as a court interpreter. In 2001, Dezfouli was accused of starting a fire at his workplace, which resulted in the death of a woman. A jury found Dezfouli found not guilty of all charges by reason of mental illness.
Dezfouli was not released from the prison system despite this verdict, and has now been in detention for over sixteen years. S 39(1) of the Mental Health (Forensic Provisions) Act 1990 No 10 allows for the indefinite detention of individuals who use the special defence of mental illness in criminal cases. This legislation has been roundly criticised by the UN Committee on the Rights of Persons with Disabilities, as it allows unconvicted individuals to be deprived of their liberty solely on the basis of their disability. The Committee made the recommendation that Australia “end the unwarranted use of prisons or the management of unconvicted persons with disabilities [and] establish mandatory guidelines and practices to ensure that persons with disabilities in the criminal justice system are provided with appropriate support and accommodation.”
During Dezfouli’s time in detention, he has repeatedly undergone forced injections of Cloxipol. He is often physically restrained by staff while the medication is forcibly administered. Despite the fact that Dezfouli has been a non-violent prisoner over the entirety of his time in detention, this involuntary treatment has been a regular occurrence. Dezfouli has attempted to put an end to this treatment by taking his case to the Mental Health Review Tribunal on multiple occasions, with limited success. He has also embarked on several hunger strikes, including one that lasted for 52 days. In 2017, Dezfouli even renounced his Australian citizenship in a bid to be sent back to Iran. The Iranian embassy has also been calling for him to be returned to his country of origin, but the Mental Health Review Tribunal has refused to release him unless they are provided with a guarantee of supervised psychiatric care from the Iranian government. In a letter to the Tribunal in December 2017, the Iranian embassy wrote, “We would like to request you to not instruct the government of the Islamic Republic of Iran how to treat and handle its citizen,” refusing to make any promises.
As of October 2018, Dezfouli is still in detention, and looking for other legal avenues to continue his fight. His future remains uncertain, but it is clear there is a long way to go before his ordeal can end.
III. Malcolm Baker
Malcolm Baker is another prisoner who has fought long battles to protect his right to bodily integrity under the NSW justice system. Malcolm Baker was sentenced to natural life imprisonment in October 1992 for the murders of six people. For fifteen years, he was kept in solitary confinement in the High Risk Management Unit at Goulburn Correctional Centre. He has defended his right to consent to medical treatment before the Mental Health Review Tribunal countless times.
Baker has had a “long-standing diagnosis of schizoaffective disorder”, as described by the Mental Health Review Tribunal in a 2018 report. Various psychiatric reports over the duration of his imprisonment mention “delusions”, which functioned as the justification for his forced medication. Baker was subject to a Community Treatment Order which legally permitted medical practitioners to medicate him without consent. However, although his CTO was discontinued in August 2012, Baker and his primary carer did not receive any notification of this fact until February 2014, meaning that he had been forcibly medicated under illegal conditions over the eighteen months in between. In 2015, Baker was forcibly medicated again, this time experiencing severe physical side-effects that rendered him semi-comatose. Prison authorities once again used his “delusions” as a basis to justify this treatment, pointing to recent events where Baker had sent letters and drawings to Clive Palmer, an Australian senator. Brett Collins, the coordinator of a prisoner advocacy group and Baker’s primary carer, asserted that sending material to a high-profile public figure does not pose a “serious risk of harm”, and should not constitute a cause for involuntary treatment. On this occasion, Baker won his case before the Mental Health Review Tribunal.
In January 2018, Baker was again subjected to fortnightly injections after he “disturbed other people” and was subsequently assaulted by other prisoners in his cell. Again, he experienced adverse physical reactions to the medication. “He was lying on his bed, unable to function, he had headaches. There’s no case for eight nurses forcibly holding him down and injecting him in the buttocks,” stated Brett Collins. At Baker’s Mental Health Review Tribunal hearing on 19 April 2018, a psychiatrist was asked for the worst-case scenario that could occur if Baker were to stop being forcibly medicated. According to a report by Justice Action, the psychiatrist’s response was that “he could become difficult to manage.” This comment demonstrates a dangerous mischaracterisation of forced medication as a “management tool”, rather than a highly contentious physical violation that should only be administered under the strictest conditions.
On 16 August 2018, Malcolm Baker appeared before the Mental Health Review Tribunal again. The leading psychiatrist in this hearing concluded that Malcolm Baker was not “delusional” in the psychiatric sense of the word, stating, “Mr Baker has for many years been fascinated by alternative points of view, which may sound bizarre and impossible.” S 16 of the Mental Health Act 2007 states that individuals cannot be considered mentally ill based merely on their personal opinions, beliefs or philosophies. In light of this new psychiatric assessment, the Tribunal agreed to gradually ease Malcolm off the medication over a period of three months and allocate him a psychologist for cognitive behavioural therapy.
This latest result represents a step in the right direction for Malcolm Baker, moving away from superficial priorities of easier management towards patient-centred rehabilitation. Another hearing is scheduled for later in the year to determine a long-term treatment plan that is tailored to Malcolm’s needs.
IV. Conclusion
It is clear that administering involuntary medical treatment to prisoners with mental illness is a complex issue, wherein many competing needs and interests collide. It is however essential to remember that one of the main objectives of criminal justice is rehabilitation. Keeping inmates with mental illness locked in hospitals or detained in solitary confinement for decades is decidedly destructive to this goal. After almost three decades behind bars, Malcolm Baker’s mental state has only deteriorated. Saeed Dezfouli’s frustrations with the NSW justice system has reached the point where he is asking to leave the country. People with mental illnesses are suffering under the care of a criminal justice system that does not hear their voices, and refuses to prioritise their wellbeing. Even prisoners who have committed the worst of crimes should not be exempt from the criminal justice system’s core rehabilitative objective.
The cases of the non-violent prisoners Saeed Dezfouli and Malcolm Baker demonstrate the severe shortcomings the NSW justice system’s care of individuals with mental illness. The system should always prioritise patient-centred alternatives to forced medication that are focussed on the goals of rehabilitation and restorative justice, such as counselling, therapeutic care, employment, and education programs.
Regardless of a prisoner’s personal history, their experience with mental illness, or the severity of their crimes, their body is still their body. Their voices must be heard, their dignity prioritised, and their human rights ever and always respected.
